Bombay High Court
Vitthal Raosaheb Holambe vs Madhukar Vaijnath Burande And ... on 2 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
915 CIVIL APPLICATION NO.15294 OF 2019
IN SAST/36238/2019
VITTHAL RAOSAHEB HOLAMBE
VERSUS
MADHUKAR VAIJNATH BURANDE AND OTHERS
...
Mr. S.A. Ambad, Advocate for the applicant/appellant
Mr. Kedar Warad, Advocate h/f Mr. S.V. Warad, Advocate for respondent
Nos.1 to 3
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 02nd SEPTEMBER, 2021.
ORDER :
1 Present application has been filed for condonation of delay of
137 days caused in preferring Second Appeal. Present appellant is the
original plaintiff, who had filed Regular Civil Suit No.97/2008 (Old R.C.S.
No.201/2006) before Civil Judge Junior Division, Sonpeth, Dist. Parbhani for
declaration of ownership and perpetual injunction. The said suit came to be
dismissed on 23.12.2016. He wanted to file appeal challenging the said
Judgment and Decree, however, there was delay and, therefore, he filed
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Miscellaneous Application (Requiring Judicial Enquiry) No.10/2017 for
condonation of delay. The said application came to be rejected by District
Judge-1, Gangakhed, Dist. Parbhani on 05.04.2019. Hence, he wanted to file
the Second Appeal, however, there is again delay of 137 days. Hence, the
present application.
2 Heard learned Advocate Mr. S.A. Ambad for the
applicant/appellant and learned Advocate Mr. Kedar Warad holding for
learned Advocate Mr. S.V. Warad for respondent Nos.1 to 3.
3 Learned Advocate for the respondents while objecting relied on
the decision of this Court in Kamalbai w/o Narasaiyya Shrimal and another
vs. Ganpat Vithalrao Gavare, 2006 SCC OnLine Bom 1126, wherein it has
been observed that - Delay cannot be condoned only because it is
unintentional. So also, mere poverty cannot be a ground for condonation of
delay. It was then further submitted that Courts cannot exceed period of
limitation on equitable ground. 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.
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3.1 Further, reliance has been placed on the decision in Patel
Motibhai Naranbhai and another vs. Dinubhai Motibhai Patel and others,
(1996) 2 SCC 585, wherein it has been held by the Hon'ble Supreme Court
that - "Court should not come to the aid of a party where there has been
unwarrantable delay in seeking the statutory remedy ." He submitted that
before the First Appellate Court there was delay and even before this Court
there is delay. So, the Court should not support the party, who is negligent.
Respondent No.2 Jagdish Madhukar Burande has filed affidavit-in-reply.
4 At the outset, it is to be noted that the application before the
First Appellate Court was to get delay of one month and two days condoned
in preferring First Appeal. That has been rejected and the appellant submits
that after the application was rejected, he had applied for the certified copies,
but since he is illiterate, agriculturist and in view of drought situation in the
vicinity, he was facing various difficulties. Another fact that is required to be
noted is that it appears that the learned First Appellate Court has not given
the opportunity to lead evidence to the applicant and only on the basis of
submissions has rejected the application. It was the delay of one month and
two days only and, therefore, in view of Collector, Land Acquisition,
Anantnag vs. Mst. Katiji, AIR 1987 SC 1553 liberal approach ought to have
been taken. In the case before this Court of Kamalbai w/o Narasaiyya
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Shrimal (supra) the note of the decision in Collector, Land Acquisition,
Anantnag vs. Mst. Katiji, AIR 1987 SC 1553 was taken, however, it was
distinguished on the point of facts. In the case of Kamalbai (supra) there was
delay of six months and it was the decision in Writ Petition, wherein, the
order of rejecting the application for condonation of delay was challenged.
Here, it is a Second Appeal and for filing the Second Appeal, there is delay of
137 days. It appears that the certified copies appears to have been obtained
just after one month, however, it was within limitation of the appeal. But
then the applicant is saying that due to illiteracy and no legal knowledge he
could not approach immediately. When the Hon'ble Supreme Court as well
as this Court is projecting for access to justice at all levels; yet, due to
illiteracy the schemes like free legal aid are not reaching to the needy
persons, we cannot blame a particular person or a particular institution for
the same. Definitely, endeavour has to be made that such legal aid is made
available from the grass root level up to Hon'ble Supreme Court to the needy
persons. Therefore, per se the illiteracy may not be a ground to condone the
delay, but it is a reality. The persons coming from the rural area and
especially the agriculturists, who are suffering due to the drought situation,
for them liberal approach is definitely required. Therefore, the delay caused
before this Court in filing Second Appeal deserves to be condoned.
Accordingly, it is condoned.
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5 By the consent of both the parties, Second Appeal is taken for
admission. As aforesaid, there appears to be no opportunity given to the
appellant to lead evidence to explain the delay. Under such circumstance,
whether the rejection of the application for condoning the delay by the First
Appellate Court was justified or not, is required to be considered. Therefore,
Second Appeal deserves to be admitted. It is, therefore, admitted. Following
are the substantial questions of law.
1 Whether the First Appellate Court was justified in
rejecting the application for condonation of delay without giving
an opportunity to lead evidence to the appellant ?
2 Whether the Second Appeal deserves remand ?
6 Issue notice to the respondents. Learned Advocate Mr. Kedar
Warad holding for learned Advocate Mr. S.V. Warad waives notice for
respondent Nos.1 to 3.
7 Call Record and Proceedings.
( Smt. Vibha Kankanwadi, J. )
agd
