Bombay High Court
Shaikh Sajjid Shaikh Gulab vs 1. Sk. Vikromoddin Sk. Gulab And ... on 29 October, 2021
Bench: V. V. Kankanwadi
ca-5950-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.5950 OF 2020
IN SAST/38354/2016
SHAIKH SAJJID SHAIKH GULAB
VERSUS
1/ SK. IIKROMODDIN SK. GULAB AND OTHERS
...
Mr. D. R. Irale-Patil h/f Ms. S. L. Awchar, Advocate for the applicant.
Mr. B. R. Kedar, Advocate for respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 04.10.2021
Pronounced on : 29.10.2021
ORDER :-
. Learned Advocate Mr. Bedre submits that he has given no
instructions pursis and he was earlier representing the applicant and
now learned Advocate Ms. Shilpa Awchar is appearing.
2. Under Such circumstance, learned Advocate Mr. Bedre is
discharged. His appearance may not be shown for the applicant.
3. Present application has been filed for getting the delay of 667
days condoned in filing second appeal. Present applicant is the original
plaintiff, who want to file second appeal challenging the judgment and
decree passed in Regular Civil Appeal No.18 of 2010 by learned Adhoc
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District Judge-3, Jalna on 17.11.2014, thereby the other two appeals
along with the appeal under challenge, all were dismissed by a common
judgment and thereby the decree passed in Regular Civil Suit No.125 of
2007 by learned Joint Civil Judge Senior Division, Jalna on 24.09.2010
was confirmed.
4. The present applicant - original plaintiff had filed the said suit for
declaration and perpetual injunction. It was contended that there was
no cart road towards the southern side of Gut Nos.80 and 85 belonging
to the plaintiff and the partition deed dated 13.06.1994 is a forged
document. Further, declaration was prayed that the agreement dated
25.06.2004 is also a forged document and not binding on him. He
prayed that the order of Tahsildar dated 30.03.2007 be set aside. The
learned Trial Judge held that the plaintiff has proved that the order
passed by Tahsildar on 30.03.2007 is illegal and perverse, however, the
other reliefs than the declaration of setting aside the order by the
Tahsildar were refused. Present appellant - original plaintiff filed
Regular Civil Appeal No.18 of 2010 and Regular Civil Appeal Nos.188 of
2010 was also filed by him. Further, the present respondent filed
Regular Civil Appeal No.208 of 2010. As aforesaid, by a common
judgment, all the three appeals have been dismissed. In fact, we are
more concerned with the decision in Regular Civil Appeal No.188 of
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2010, which was filed by the present appellant challenging the judgment
and decree in Regular Civil Suit No.125 of 2007.
5. Heard learned Advocate Mr. D. R. Irale-Patil holding for learned
Advocate Ms. Shilpa Awchar for applicant and learned Advocate Mr. B.
R. Kedar for respondent No.1.
6. It has been vehemently submitted on behalf of the applicant that
after dismissal of the first appeal, the applicant had obtained the
certified copies, however, in the month of January 2015, the applicant
was suffering from jaundice and was bedridden up to June 2015.
Thereafter, he had misplaced the certified copies and other papers. He
was also suffering from illness due to old age and was unable to attend
the proceedings. In the month of August, 2016, he approached the
Advocate for filing the appeal and collected necessary papers. He is
poor agriculturist having no knowledge about the legal procedure and
practices. Present respondent No.1 has filed Second Appeal No.80 of
2008 in respect of the suit land and it is pending. Under such
circumstance, the delay which is unintentional deserves to be condoned.
7. The application has been objected by respondent No.1 by filing
affidavit-in-reply. It has been contended that the reasons given by the
applicant for getting the delay condoned are not genuine. In fact,
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present applicant - original plaintiff has filed another suit i.e. Regular
Civil Suit No.82 of 2016 against respondent No.1 and his brother before
learned Civil Judge Junior Division, Jalna for re-opening of partition.
He is regularly prosecuting that suit. Under such circumstance, the
excuse under the guise of alleged illness cannot be given to him. He has
made false statement about his health. The delay is not properly
explained, which is more than two years.
8. Learned Advocate for respondent No.1 has relied on the decision
in Kamalbai w/o Narasaiyya Shrimal and another Vs. Ganpat s/o
Vithalrao Gavare, [2007 (1) Mh.L.J. 807], wherein it has been held :-
" There cannot be any duality of opinion that normally a
litigant would not intentionally commit delay in filing of
proceedings like an appeal. The delay cannot be condoned
only because it is unintentional. It will be rather too wide
interpretation if the condonation of delay is to be allowed
only because there is no intention of a party to cause delay.
The reason is not far to seek. For, the expression
"intention" cannotes state of mind of a person. The state
of mind cannot be fathomed without there being attending
circumstances. In the present case, there is only an
allegation that the petitioners had no intention to cause
delay. There are no sufficient attending circumstances
placed on record to bolster up such allegation. Mere
poverty cannot be a ground for condonation of the delay.
Petition dismissed.
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The expression "sufficient cause" cannot be erased from
Section 5 of the Limitation Act by adopting excessive
liberal approach which would defeat the very purpose of
Section 5. There must be some cause which can be termed
as a sufficient one for the purpose of delay condonation.
No such "sufficient cause" stated in the application and as
such no interference in the impugned order is called for."
9. It is also to be noted that during the course of the arguments, it
has come on record that Second Appeal No.519 of 2016 has been filed
by respondent No.1, however, there was no delay, though it appears that
the appeal was numbered belatedly. Merely because the other party has
filed appeal challenging the same judgment and decree that doesn't ipso
facto gives right to the present applicant to get the delay condoned.
Independently, the present applicant will have to show that there were
reasonable grounds for not approaching the Court within limitation.
10. Though it has been stated in the application that the applicant
would like to rely on the medical certificate, yet it can be seen that no
such certificate issued by any competent Doctor has ever been produced
by the applicant. Therefore, there is no support to his submission that in
the month of January 2015 he was suffering from jaundice and was
bedridden up to June, 2015. The present applicant has already taken
the certified copies immediately after the pronouncement of judgment
by the first Appellate Court. The applicant is then coming with the case
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that he had misplaced the certified copies. Again, he says that he was
ill. He has not stated the nature of his illness and where he had taken
the treatment. Everything has been stated in a vague. The delay of 667
days is huge and inordinate. Even if leniency is given for a drafting, yet
when it is not supported by any evidence and when he already had the
certified copies in his hand, he was only require to give necessary
instructions to the Advocate to whom he wanted to engage. Another fact
which we cannot forget is that along with his sons, the plaintiff has filed
Regular Civil Suit No.82 of 2016 before learned Civil Judge Senior
Division, Jalna. That means, at one place, he was prosecuting the
matter and at another place, he says that he is suffering from jaundice.
Under such circumstance, the application doesn't appear to be bona fide.
The ratio laid down in Kamalbai Narasaiyya Shrimal and another
(Supra) is applicable here. When no reasonable much less sufficient
ground has been shown to condone the huge and inordinate delay, the
application deserves to be dismissed. Accordingly, it is dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
