Shri. Kalyan S/O Ganpatrao ... vs Pradeep S/O Ganpatrao Mange
2022 Latest Caselaw 8545 Bom

                                                         1                                   30.WP.5251-2022.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 5251 OF 2022
                           ( Shri Kalyan S/o Ganpatrao Sontakke
                                             Vs.
                              Pradeep S/o Ganpatrao Mange )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. V.R. Baseshankar, Advocate for the Petitioner.
                                  Mr. M.B. Naidu, Advocate for the Respondent.

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 29th AUGUST, 2022.

Heard Mr. Baseshankar, learned counsel for the petitioner and Mr. Naidu, learned counsel for the respondent.

2. The petition challenges the order dated 20.08.2022 (page 53) passed by the learned District Judge-1, Nagpur, whereby the delay in filing the appeal against the judgment and decree passed in RCS No.1002/2003 dated 16.01.2017, has been rejected. The delay according to the Office is 1997 days.

3. The fact position indicates, that RCS No. 1002/2003 and RCS No.491/2004 were consolidated and common evidence was recorded therein. By a common judgment dated 16.01.2017, both the matters were decided. Against this common judgment, a single Appeal bearing RCA No.169/2017 came to be filed on 18.03.2017. The prayer clause in RCA No.169/2017 2 30.WP.5251-2022.odt

indicates a challenge to the common judgment and decree dated 16.01.2017 in both the suits (page 22). However, later on it came to be realized that though both the suits were decided by a common judgment on 16.01.2017, a separate appeal, ought to have been filed against the judgment and decree in both the suits. Realizing this position on 08.08.2022, an independent appeal came to be filed challenging the common judgment in RCS No.1002/2003 dated 16.01.2017. On 11.08.2022, a Pursis Exh. 15 was tendered before the learned Appellate Court in RCA No.169/2017 restricting the appeal to the judgment and decree in RCS No. 491/2004 alongwith the appeal, an application for condonation of delay came to be filed which has been rejected. Though the rejection is sought to be justified by Mr. Naidu, learned counsel for the respondent, relying upon Estate Officer, Haryana Urban Development Authority and Anr. Vs. Gopi Chand Atreja, AIR 2019 SC 1423 para 18 ; Vikas s/o Prem Somkuwar Vs. Kailas s/o Panjabrao Dunedar and another, 2019(2) Mh.L.J. 451 para 8 and Sarda Transport Vs. United India Insurance Company Ltd. & Anr., 2018(4) ALL MR 576 , all these cases, are pure and simple on a delay occasioned in the filing of the appeal against the judgment and decree impugned therein. The facts of the present case indicate, that the challenge, to the consolidated judgment dated 16.01.2017 in both the suits, was already before the learned appellate Court in RCA No. 169/2017, and therefore, when it was realized that as a matter of form two separate appeals, were to be filed the appeal 3 30.WP.5251-2022.odt

challenging the judgment in RCS No. 1002/2003 came to be filed. It is therefore apparent, that this is not a matter simplicitor where there has been a delay in filing of an appeal but a case where the consolidated judgment, was already challenged in RCA No. 169/2017. This aspect, has been ignored by the learned trial Court in the impugned order, considering which, the same is hereby quashed and set aside and the delay as claimed to have been occasioned in filing of the appeal challenging the consolidated judgment dated 16.01.2017 in RCS No. 1002/2003, is hereby condoned. The appeal be registered. Mr. Naidu, learned counsel for the respondent, waives notice in the appeal also.

4. Needless to say, that the learned trial Court, is directed to decide both the appeals, within a month from today as the paper-book is already on record by hearing the parties. The parties agree to appear before the learned appellate Court on 30.08.2022 and shall intimate the learned appellate Court, the decision in the present matter by placing a copy of this order before the learned appellate Court to act upon it.

5. The petition is accordingly allowed and disposed of. No costs.

Signed By:SHRIKANT
DAMODHAR BHIMTE                                                            JUDGE
             SD. Bhimte
Signing Date:29.08.2022 18:36