Vitthal Keshavrao Dhole vs Pandhari Baliram Dhole
2021 Latest Caselaw 13529 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                         CIVIL APPLICATION NO.148 OF 2018
                                IN SAST/11986/2016
                                       WITH
                         CIVIL APPLICATION NO.149 OF 2018


                              VITTHAL KESHAVRAO DHOLE
                                      VERSUS
                               PANDHARI BALIRAM DHOLE
                                         ...
                    Mr. J.M. Murkute, Advocate for the applicant
                Mr. B.M. Dhanure, Advocate for the sole respondent
                                         ...

                                    CORAM :    SMT. VIBHA KANKANWADI, J.
                                    RESERVED ON      : 08th SEPTEMBER, 2021.
                                    PRONOUNCED ON : 21st SEPTEMBER, 2021.


ORDER :

1 Present application has been filed for getting delay of 1495 days

condoned in filing the Second Appeal. Present applicant is the original

plaintiff, who had filed Regular Civil Suit No.17/1998 for declaration of

ownership and perpetual injunction. The said suit came to be partly decreed

on 09.08.2004. The present respondent-original defendant challenged the

said Judgment and Decree in Regular Civil Appeal No.66/2004 before

2 CA_148_2018

learned District Judge-2, Udgir. The said appeal came to be allowed on

09.12.2011. The Judgment and Decree passed by the Trial Court in Regular

Civil Suit No.17/1998 was set aside and the suit was dismissed. The present

applicant/appellant intends to file Second Appeal, however, there is delay, as

aforesaid of 1495 days. Hence, the present application.

2 The applicant is contending that he was not keeping well and,

therefore, he had not appeared before the First Appellate Court on the date of

the Judgment. He is old aged person and had no knowledge about the

decision in the appeal. After he had recovered he made inquiry with his

Advocate and came to know about the decision. He made request for the

documents for filing Second Appeal before this Court. Then the Advocate

from the Court below advised him that he need not go to Aurangabad for

filing appeal, but he will send the entire file to the Advocate at Aurangabad.

When he received no communication, though he was contacting the

Advocate, time and again, who had not informed him the progress in the

appeal, then he got to know that the defendant is trying to effect mutation

entry in his favour, in view of the Judgment of the Appellate Court. He once

again made request to his Advocate to give the copy of the Second Appeal, at

that time, he was informed that the Second Appeal has not been filed. He

once again went to the Lower Court, applied for the certified copies and filed

3 CA_148_2018

the Second Appeal. The delay is unintentional and he was under bona fide

belief that the Second Appeal has been filed by the Advocate.

3 Heard learned Advocate Mr. J.M. Murkute for the applicant and

learned Advocate Mr. B.M. Dhanure for the sole respondent.

4 Learned Advocate for the applicant submitted that the applicant

is also relying upon the fact that he had met with an accident and to prove

that he has produced the copy of the First Information Report, his own

statement taken by the police and the injury certificate. He reiterated the

said reasons given in the application and submitted that the delay be

condoned.

5 Per contra, the learned Advocate for the respondent strongly

objected the application and submitted that the delay is inordinate and it has

not been properly, much less sufficiently explained.

6 There is no doubt that the delay that has been caused is

inordinate and huge. It is then required to be seen, as to whether the delay

has been properly explained or not. It is to be noted that the decision of the

First Appellate Court was given on 09.12.2011 and the FIR that has been

filed in respect of occurrence of the offence on 16.08.2011. That means,

even before the decision of the First Appellate Court the applicant had met

4 CA_148_2018

with an accident and his injury certificate would show that he had sustained

only two contusions, which were the simple injuries. As aforesaid, the

decision of the First Appellate Court has come about four months after the

applicant had met with an accident. For simple injuries four months time

was sufficient for the recovery. There is absolutely no evidence adduced by

the applicant to show that prior to 07.03.2015 he or his Advocate had ever

applied for the certified copies. When the application for the certified copy

itself is after 14 days, then no sympathy can be shown in favour of the

applicant-original plaintiff. The applicant has not given the name of the

Advocate he had contacted and who had promised him that he would make

arrangement to send papers to the Advocate practicing before this Court.

Though supporting affidavit has been filed, those allegations or averments

cannot be taken as truth as intentionally the name of the Advocate is not

given. Further, it is also absolutely not stated, when he got recovered and

then when he went to said Advocate, on which day the promise was given by

the concerned Advocate that he would transmit the copies to the Advocate

practicing before this Court. How many times he made the inquiry is kept

vague and if no such step was taken by the concerned Advocate, why he

would give a false account to the applicant, is a question. Therefore, for

vague reasons we cannot come to the conclusion that there is any sufficient

reason assigned.

                                             5                                      CA_148_2018



7                Reliance can be placed 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.

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."

7.1 Further, reliance can be 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."

8 Therefore, application stands rejected. Pending Civil Application

No.149 of 2018 stands disposed of.

( Smt. Vibha Kankanwadi, J. )

agd