Hotappa Timmaraj Timmarayan And ... vs Kishor Kisanrao Jejurkar
2021 Latest Caselaw 13457 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           SECOND APPEAL NO.363 OF 2021
                                       WITH
                         CIVIL APPLICATION NO.9006 OF 2021


              HOTAPPA TIMMARAJ TIMMARAYAN AND ANOTHER
                                      VERSUS
                              KISHOR KISANRAO JEJURKAR
                                         ...
     Mr. S.G. Rudrawar and Mr. A.N. Irpatgire, Advocates for appellants
                Mr. S.B. Narwade, Advocate for the sole respondent
                                         ...

                                    CORAM :    SMT. VIBHA KANKANWADI, J.
                                    RESERVED ON     : 06th AUGUST, 2021
                                    PRONOUNCED ON : 20th SEPTEMBER, 2021


ORDER :

1 Heard learned Advocate Mr. A.N. Irpatgire for appellants and

learned Advocate Mr. S.B. Narwade for the sole respondent.

2 Present appellants are the original defendants, who want to

challenge the Judgment and order passed in Civil Miscellaneous Application

No.299/2019 by learned District Judge-3, Ahmednagar, by which their

application under Section 5 of the Limitation Act for condoning the delay

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came to be rejected on 30.07.2021. It appears that the present appellants

intend to challenge the ex parte Judgment and Decree passed against them

by the learned Civil Judge Senior Division, Ahmednagar in Special Civil Suit

No.26/2017 on 11.01.2019, thereby decreeing the suit filed for specific

performance of the contract in this Second Appeal.

3 It has been vehemently submitted on behalf of the appellants

that the First Appellate Court has not considered the facts and circumstances

of the case properly. The appellants had contended that they were not served

with the summons of the suit before the First Appellate Court and, therefore,

they were not aware about the decree that was passed. They came to know

about the said decree when they received the summons of the execution

proceedings around 07.06.2019. Thereafter, they had applied for the

certified copies and came to know about the ex parte decree. They received

the certified copies on 09.07.2019 and thereafter it is contention of the

appellants that they had met the respondent and there were compromise

talks. It was also informed to them through Mediator that the matter has

been amicably settled out of Court. However, the respondent gave draft sale

deed before the executing Court and then they realized that respondent is not

intending to abide by the settlement and, therefore, there is delay in filing

the appeal. The said delay was unintentional. The learned First Appellate

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Court has taken the evidence of the parties. The applicant No.2 has

examined herself and the respondent filed certain documentary evidence in

the form of summons of the Trial Court and also examined the Bailiff OW 1

Navnath Bhanudas Gore. The First Appellate Court has wrongly concluded

that the appellants were duly served with the summons in the suit and they

have not explained the delay properly and thereby the application for

condonation of delay was rejected. It is to be noted that the delay was of 209

days and according to the applicants-appellants, it was properly and

sufficiently explained. Under such circumstance, the substantial questions of

law are arising in this case.

4 Per contra, the learned Advocate for the respondent supported

the reasons given by the First Appellate Court in rejecting the application for

condonation of delay. He submitted that the deposition of the Bailiff would

make it clear that he had searched for the defendants in the suit on the

address supplied and he has categorically stated that the second address, that

was given on the summons, was Sy.No.68/1A/2B, Plot No.1, Savedi, Pipeline

Road, Ahmednagar. It is the same address, which has been given by the

present appellants in the present appeal as well as in the Civil Miscellaneous

Application before First Appellate Court. When two addresses were given,

the Bailiff had searched for the defendants at CQAV colony, Aurangabad

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Road, Ahmednagar. He came to know that defendants are residing near

Sunny Palace Hotel, Aurangabad road. There is nothing in the cross of the

said Bailiff, which could show malice on the part of the Bailiff in giving false

report. When the respondent had proved that the defendants were properly

served; yet, they remained absent and then even after they were served in the

execution proceedings, they remained quiet for long period and now they are

contending that the compromise talks had taken place and they were

believing in the alleged promise. No supporting evidence was led by them

and therefore, when the delay was not sufficiently, much less reasonably

explained, the First Appellate Court was right in dismissing the application.

No substantial questions of law are arising in this case, as the Trial Court has

considered the case of the plaintiff, the evidence that has been led by the

plaintiff in proper perspective. The discretion to grant decree of specific

performance has been rightly exercised, it requires no interference.

5 At the outset, we are required to consider, as to whether the

delay before the First Appellate Court, which was of 209 days, was properly

explained by the applicants and whether the application for condonation of

delay ought to have been allowed by the First Appellate Court. This can be

considered by way of substantial question of law and since the appellants are

also challenging the ex parte decree passed by the Trial Court in the Second

5 SA_363_2021

Appeal, it is also required to be considered, as to whether it can be allowed

directly, when the application for condonation of delay has been rejected.

Therefore, substantial question of law deserves to be framed, as

contemplated under Section 100 of the Code of Civil Procedure, 1908, by

admitting the Second Appeal. Second Appeal stands admitted. Following are

the substantial questions of law :

1 Whether the First Appellate Court was justified in holding that the delay of 209 days caused in filing First Appeal is not sufficiently and reasonably explained by the applicants ?

2 Whether the appellants can challenge the Judgment and Decree passed by the learned Trial Judge in Special Civil Suit No.26/2017 dated 11.01.2019 directly before this Court in Second Appeal ?

6 Issue notice to the respondent after admission of the Second

Appeal, returnable on 08.10.2021. Learned Advocate Mr. N.B. Narwade

waives notice for the sole respondent.

7 Civil Application No.9006 of 2021 has been filed for stay. As per

the documents, which are on record, and even in the application filed by the

applicants before the First Appellate Court, it is stated that the draft sale deed

was produced by the respondent before the executing Court on 03.09.2019

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and, therefore, respondent to make statement on oath, as to whether sale

deed has been got executed in his favour through Court by him. In other

words, the status in the execution proceedings be communicated to this

Court on the next date.

( Smt. Vibha Kankanwadi, J. )

agd