Rajkumar Bhimrao Solunke ... vs Avinash Anantrao Kulkarni @ ...
2021 Latest Caselaw 12750 Bom

                                         (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  CIVIL APPLICATION NO.147 OF 2018
                                 IN
                 SECOND APPEAL ST.NO.32314 OF 2016

 Rajkumar Bhimrao Solunke
 Deceased through L.Rs. -

 1(a) Sakubai w/o Rajkumar Solunke
      and Ors.                                             =     APPLICANT/S

          VERSUS

 1)       Avinash Anantrao Kulkarni
          and Anr.                                         = RESPONDENT/S
                                                        (Orig.Defendants)
                                        -----
 Mr.SP Salgar, Advocate h/for Mr.NV Gaware, Adv. For
 Applicant/s;

 Mr.AN Irpatgire,Advocate for Respondent Nos.1 & 2.
                        -----

                                 CORAM :       SMT.VIBHA KANKANWADI,J.

                                 RESERVED ON   :         20/08/2021
                                 PRONOUNCED ON :         07/09/2021
 PER COURT :-

 1.               Present        application      has    been       filed        for

condoning delay of 612 days in filing the Second

Appeal.

2. Heard learned Advocates appearing for the

respective parties.

3. It has been vehemently submitted on

behalf of the applicants that the applicants, who

are the original plaintiffs, had filed RCS No.

202/2006 before the Civil Judge, Senior Division,

Nilanga for permanent injunction. The said suit

was decreed by learned Civil Judge, Senior

Division, Nilanga on 21.2.2011. The present

respondents - original defendants, challenged the

said judgment and decree before the District Court

at Nilanga by filing Regular Civil Appeal No.

30/2011. The said appeal was heard by learned

District Judge-1, Nilanga. It has been stated in

the judgment of the first Appellate Court that the

original plaintiff-respondent has not contested the

appeal. The appeal went exparte against him. The

said appeal has been allowed on 15.11.2014 and

thereby the judgment and decree passed by the

learned Trial Judge has been set aside. The suit

was dismissed. The original plaintiff-present

appellants intend to file Second Appeal, however,

there is delay, as aforesaid.

4. Original sole plaintiff - Rajkumar was

looking after the court proceeding. However, he

was suffering from ailment of liver and was

intermittently hospitalized since about 2 to 3

years. He was regularly taking treatment at Latur

and Hyderabad. Due to his illness, deceased

Rajkumar could not take necessary steps, though it

appears that he was served with the notice in

appeal. The family members were also required to

take care of Rajkumar and, therefore, they could

not also pay attention to the litigation.

Ultimately, Rajkumar succumbed to his illness and

thereafter the applicants were in grief. The

applicants had also approached Advocate Mr. SV

Kurle and had instructed to appear for them in the

said Regular Civil Appeal No.30/2011. However, due

to misconception that the Advocate had not put his

appearance. The delay is unintentional. The

judgment of the first Appellate Court is required

to be set aside as it is perverse and for that

purpose, the delay deserves to be condoned.

5. Per contra, learned Advocate appearing

for the respondents submitted that the applicants

have not given sufficient reasons much less

reasonable to condone the delay. They were

supposed to explain the delay of 612 days caused in

filing the Second Appeal. However, the appeal was

before the trial court for about 3 years 7 months

and 17 days; yet no steps were taken to contest the

same at later point of time in the same

proceedings.

6. Learned Advocate for the appellants-

applicants relied on decision in the case of

Collector, Land Acquisition, Anantnag Vs.

Mst.Katiji and Ors. - 1987 AIR (SC) 1353, wherein

it has been held that, - "liberal approach is

required to be taken and refusing to condone the

delay can result in a meritorious matter being

thrown out at the very threshold and cause of

justice being defeated."

7. In N.Balakrishnan Vs. M.Krishnapmurthy -

1998 AIR (SC) 3222, it has been observed that, it

is axiomatic that condonation of delay is a matter

of discretion of the court and Section 5 of the

Limitation Act does not say that such discretion

can be exercised only if the delay is within a

certain limit. Length of delay is no matter,

acceptability of the explanation is the only

criteria.

8. At the outset, it is to be noted that at

this stage, we are only concerned with the fact as

to whether the delay of 612 days caused in filing

the Second Appeal, has been properly explained or

not. Merits of the case may not be minutely gone

into, but then at the same time, we are also

required to consider whether any meritorious matter

would be thrown away. As regards facts of the case

are concerned, there appears to be appreciation of

the same by both the courts below.

9. In order to explain the delay of 612

days, the applicants are contending that deceased

Rajkjumar, who was sole plaintiff, was looking

after the court proceedings. But, he was suffering

from ailment of liver and, therefore,

intermittently was hospitalized since last 2 to 3

years. The contents of the application have been

kept as vague as possible. It is absolutely not

stated as to since when Rajkumar was ill and how

many days he was hospitalized. The applicants have

not produced any documentary evidence to support

their contention that Rajkumar was suffering from

liver ailment. There was definitely possibility of

production of documents, as it would be in the

custody of the applicants; yet though the Civil

Application is pending since 2018, but it appears

that even for that, the Second Appeal, though filed

in 2016,(As stamp number indicates), it appears

that the application was kept for removing office

objections. This shows negligence on the part of

the applicants also. They are contending that due

to serious ailment, deceased Rajkumar was bid-

ridden and the applicants were taking care of

Rajkumar. In the application, date of death of

Rajkumar has not been stated. Even if for the sake

of argument it is accepted that they might be

taking care of Rajkumar till his death; yet fact

remains, in absence of document, it cannot be said

that the delay has been properly explained. The

matter was before the appellate court for more than

three years; yet there was no attempt on the part

of the applicants to appear and give instructions

to the Advocate. Supporting affidavit of Advocate

Kurle has not been brought though statement is

made that the applicants had approached him and

according to the applicants, due to misconception,

the Advocate could not appear. This is

indigestible.

10. The ratio laid down in both the aforesaid

citations cannot be disputed. However, when re-

appreciation of facts and evidence has been done by

the first Appellate Court, it cannot be said that a

meritorious case would be thrown at the threshold.

No reasonable ground has been shown to condone the

delay. Hence, the application for condonation of

delay stands dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

BDV