Bombay High Court
Shevantabai D/O Govinda Bhaskar ... vs Chandrabhagabai Wd/O Ramchandra ... on 20 April, 2022
Bench: Manish Pitale
1/6 918.mca16984.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION (CAO) NO. 281 OF 2022
IN
MISC. CIVIL APPLICATION (ST.) NO. 16984 OF 2021
Shevantabai d/o Govinda Bhaskar and anr.
Vs.
Chandrabhagabai wd/o Ramchandra Dangre and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Pushkar Ghare, Advocate for appellants.
CORAM : MANISH PITALE J.
DATE : 20.04.2022.
Misc.Civil Application (Stamp) No.16984
of 2021 and Civil Application (CAO) No.281/2022
are applications seeking restoration of the appeal and
for condonation of delay in moving the application
for restoration.
2. A perusal of the application shows that
there is a delay of about 765 days in seeking
restoration of the appeal, which stood dismissed for
non-removal of office objections, as far back as on
13.09.2019. It is claimed that the applicants were
totally unaware about such dismissal of the appeal.
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3. In the present case, the impugned
judgment and order was passed by the appellate
Court on 19.01.2018 and it appears that the appeal
was filed before this Court in the year 2018 itself. The
appeal remained pending for non-removal of office
objections. It appears that on an earlier occasion it
was dismissed for default. Thereafter, it was sought to
be restored and the learned Registrar passed an order
giving time to the applicants to remove the office
objections. Since, the objections were not removed in
the stipulated period of time, on 13.09.2019, the
appeal itself stood dismissed on the ground of non-
removal of office objections.
4. Thereafter, no remedial measures were
taken on the part of the applicants or their counsel.
After a delay of 765 days, the present applications has
been filed. It is claimed that when notices were
received in the execution proceedings that the
applicants woke up from their slumber and contacted
their counsel, who himself was unaware about
dismissal of the appeal on 13.09.2019. It is stated in
a very casual manner that the counsel, due to
oversight, missed out on the fact of dismissal of the
appeal on 13.09.2019 and when the applicants
contacted him, he made enquiries and became aware
about the order dated 13.09.2019. It is thereafter,
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that on 21.12.2021, the present applications were
filed.
5. It appears that thereafter, the applicants
chose to change their counsel and they engaged the
counsel who has now appeared on their behalf before
this Court
6. The learned counsel appearing for the
applicants submits that the executing Court
proceeded in the meanwhile by issuing warrants and
as on today, admittedly the applicants have lost
possession of the suit property. Yet, it is contended
that due to no fault on the part of the applicants, they
are facing this predicament and that if the appeal is
not restored, they will be deprived of consideration
their case on merits. It is sought to be demonstrated
that the applicants do have a strong case on merits in
the second appeal and that this Court may show
indulgence to consider the appeal on merits by
allowing the present application.
7. This Court has noted the chronology of
events in the present case. It demonstrates the
approach adopted by the applicants, as also their
erstwhile counsel in pursuing the matter before this
Court. It is frequently seen that litigants and counsel
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appeals before this Court and leave them unattended
which results in dismissal for default or non-removal
of office objections. It is seen that they wake up from
their slumber when the executing Court takes up the
matter in right earnest, which itself usually takes a
long period of time. Filing of appeals and keeping
them pending has now become a tactic on the part of
litigants and their counsel to delay proceedings
before the Courts below by giving an impression that
the matter is pending before the High Court.
8. Applications like the present one are
causally filed by stating that counsel for the
applicants missed out on the listing of the appeal at
the stage of removal of objections and it is claimed
that when the litigants called up the counsel on
pressure being put by the executing Court that upon
inquiries the counsel became aware about the
dismissal of the appeal for default or for non-removal
of office objections.
9. The explanation given in the present
application, to say the least is casual and it is based
on a presumption that this Court would condone
delay and restore appeals, since the contentions
sought be raised by such applicants usually are taken
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up on merits despite considerable delay in seeking
restoration of the proceeding.
10. The contents of the applications for
consideration before this Court today also
demonstrate the casual manner in which they have
been drafted. This is not a comment on the counsel
appearing for the applicants today. Nonetheless, it
demonstrates a trend that is observed in a number of
such matters by this Court.
11. In any case, as on today, the applicants
have lost possession of the suit property. This Court
is inclined to give a chance to the applicants for
consideration of their contention on merits in the
accompanying second appeal but, such an
opportunity cannot be granted without imposing
appropriate costs for the manner in which the appeal
was pursued before this Court and the casual manner
in which application for restoration of the appeal has
been filed after delay of 765 days. It is only with a
view to grant an opportunity to the applicants to
make submissions on merits in the accompanying
second appeal that this Court is showing indulgence,
albeit upon imposing appropriate costs.
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12. In view of the above, the applications are
allowed.
13. The delay is condoned and the appeal is
restored, subject to the applicants depositing an
amount of ₹ 25,000/- as costs. The costs shall be paid 25,000/- as costs. The costs shall be paid
in the account of the High Court Legal Services Sub-
Committee, Nagpur, within a period of four weeks
from today.
14. Upon the costs being deposited, the
appeal shall stand restored and it shall be listed for
consideration.
15. Liberty is reserved for the applicants to
mention the appeal for urgent listing upon depositing
the costs as directed above.
16. The applications stand disposed of.
JUDGE
Prity
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date:
2022.04.22
17:39:45 +0530
