Bombay High Court
Satyabhama Ashok Pawar vs Madan Vitthal Gambhire on 27 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.13080 OF 2019
IN SAST/31694/2019
SATYABHAMA ASHOK PAWAR
VERSUS
MADAN VITTHAL GAMBHIRE
...
Mr. S.V. Dixit, Advocate for the applicant
Mr. N.C. Garud, Advocate for the sole respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 14th SEPTEMBER, 2021.
PRONOUNCED ON : 27th SEPTEMBER, 2021.
ORDER :
1 Present application has been filed for getting delay of 584 days
condoned in filing Second Appeal. Present appellant is the original
defendant in Regular Civil Suit No.38/2008, which was filed by the present
respondent for declaration and permanent injunction. Present appellant had
also filed Regular Civil Suit No.147/2007 against the present respondent for
permanent injunction. Both the suits were tried together by learned Civil
Judge Junior Division, Jamkhed, Dist. Ahmednagar. The suit filed by the
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present appellant i.e. Regular Civil Suit No.147/2007 came to be decreed on
12.04.2010. The present respondent was restrained from disturbing the
possession of the plaintiff over the suit land. The suit filed by the present
respondent i.e. Regular Civil Suit No.38/2008 was partly allowed on
12.04.2010. He was declared to be the owner of Gat No.494 to the extent of
80 R, however, his prayer for injunction was rejected.
2 Present appellant only challenged the part of the Judgment and
Decree passed in Regular Civil Suit No.38/2008, which had gone against her
in Regular Civil Appeal No.234/2014. The said appeal was heard by learned
District Judge-10, Ahmednagar and was dismissed on 28.11.2017. Now, the
applicant intends to challenge the said Judgment and Decree passed in
Regular Civil Appeal No.234/2014, however, there is delay, as aforesaid, of
584 days. Hence, this application under Section 5 of the Limitation Act.
3 Heard learned Advocate Mr. S.V. Dixit for the applicant and
learned Advocate Mr. N.C. Garud for the sole respondent. In order to cut
short, it can be said that they have argued in support of their respective
contentions.
Reply has been given by the respondent. The learned Advocate
for the respondent strongly objected the application and submitted that the
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delay is huge and inordinate and it has not been properly, much less
sufficiently explained.
4 It is to be noted that the applicant is a lady, doing agriculture
and coming from a rural background. No doubt, the delay appears to be
inordinate, but she has tried to explain that when her suit came to be
decreed, she was rest assured, but when the suit filed by the defendant came
to be partly allowed and the present respondent was declared to be the
owner of the suit property in respect of which even the applicant had filed
the suit, she had challenged that decree before the First Appellate Court. She
also states that she was thereafter under misunderstanding that her title to
the suit property has not been interfered with and the respondent had not
filed any appeal, challenging the Judgment and Decree in Regular Civil Suit
No.147/2007, she took that as it has achieved finality. However, later on, the
respondent has filed suit for recovery of possession and, therefore, she wants
to challenge the said Judgment and Decree passed by the First Appellate
Court. This misunderstanding appears to be the justified reason or
reasonable ground for the applicant and, therefore, delay deserves to be
condoned. However, the inconvenience that would be caused to the
respondent needs to be compensated in terms of money. Hence, following
order.
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ORDER
1 Application stands allowed and disposed of.
2 The delay caused in filing Second Appeal stands condoned,
subject to deposit of costs of Rs.5,000/- (Rupees Five Thousand only), within
a period of one month, from today.
3 After the costs is deposited, it be given to the respondent.
4 Registry to verify and register the Second Appeal.
( Smt. Vibha Kankanwadi, J. )
agd
