Smt. Mankabai Laxman Kadam And Ors vs Smt. Smita Dattatray Daphale And ...
2022 Latest Caselaw 8245 Bom

                                                  31-WP-4566-2016.docx

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO.4566 OF 2016

Mr. Maankabai Laxman Kadam & Ors.                               ..... Petitioners
     Vs.
Smt. Smita Dattatray Daphal                                     ....Respondent

                                            ....

Mr. Umesh Mankapure for the Petitioners.
Mr. Prasad Avhad i/by Mr. Kuldeep U. Nikam for Respondent
Nos.1 and 2.
Mr. Mandar Limaye for Respondent No.3.

                                    CORAM: SANDEEP K. SHINDE, J.

DATED : AUGUST 23, 2022

P.C.

1. Heard Mr. Mankapure, learned Counsel for the

Petitioners, Mr. Prasad Avhad for Respondent Nos.1 and 2 and

Mr. Limaye learned counsel for the Respondent No.3.

2. The Hon'ble Supreme Court in its decision in Isha

Bhattacharjee v. Managing Committee of Raghunathpur

Nafar Academy and Ors. 2013(12) SCC 649 has laid down

the principles applicable to an application for condonation of

delay, two of which read as under;

"(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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                                                     31-WP-4566-2016.docx

                (viii)       There is a distinction between inordinate

delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation."

. In the light of above two principles, let me ascertain

whether facts of the case deserve to condone the delay.

3. Briefly stated, in Regular Civil Suit No.22 of 1985,

decree of possession, was passed against the predecessor-in-title

of the Petitioners. On 4th February, 1997. Regular Civil Appeal

No.132 of 1997 instituted by the Petitioners, was dismissed in

default on 12th December, 2007. In the meanwhile, decree was

put to execution and notices were issued to Petitioners/Judgment

Debtors. Whereafter, in April, 2011, Petitioner moved a

Miscellaneous Civil Miscellaneous Application No.122 of 2011, to

set aside the order dismissing the appeal, by condoning the

delay of more than three years caused therefor. The learned

Appellate Court rejected that application on the ground that

applicants could not show the 'Sufficient Cause' for condoning

the delay. It is against that order, dated 29 th March, 2014, this

Petition is preferred in July, 2014.

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                                            31-WP-4566-2016.docx

4. In consideration of the facts of the case, in my view,

there was inordinate, delay to which the doctrine of prejudice is

clearly attracted. Fact cannot be overlooked that, suit in this

case was filed in the year 1985 and the decree was passed in

1997. Thus, over a period of twenty-two years, respondents-

decree holders, have been deprived of the fruits of decree.

5 For, these reasons, impugned order calls for no

interference. Petition is dismissed.

                                          (SANDEEP K. SHINDE J.)




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