Bombay High Court
Laxmanrao Marutirao ... vs Jadhavji Jethabhai Balaji ... on 16 December, 2022
Bench: Madhav J. Jamdar
Digitally signed
954-sa-354-2021.doc
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.12.20
18:40:03
+0530
Pallavi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.354 OF 2021
WITH
INTERIM APPLICATION NO.3349 OF 2020
Laxmanrao Marutirao Tamhane (deceased)
Through his Legal Heirs
Shankar Laxmanrao Tamhane ... Appellant
Versus
Jadhavji Jethabhai Balaji Sanatorium Trust
Public Trust through its Trustees -
1. Charandas Meghaji (Dismissed)
2. Ranjeet Dharamasi and Ors. ... Respondents
Mr. Rahul S. Kadam, for the Appellant/Applicant.
Mr. B.K. Raje for the Respondents.
CORAM: MADHAV J. JAMDAR, J.
DATE : 16th DECEMBER, 2022
P.C.:
1. Heard Mr. Rahul Kadam, learned counsel appearing for the
Applicant/ Appellant and Mr. Raje, learned counsel appearing for the
Respondent No.1 - Jadhavji Jethabhai Balaji Sanatorium Trust.
2. Second Appeal is admitted on the following substantial
question of law:
"Whether the First Appellate Court committed illegality in
dismissing Civil Miscellaneous Application No.2 of 2013
although sufficient reasons are given for condonation of
delay in filing the Appeal challenging the judgment and
decree of the learned Trial Court?
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3. The factual position on record shows that the Respondents filed
Regular Civil Suit No.351 of 1988 on 16 th July 1988 seeking
possession. It appears that the defendants engaged one Mr. J.B. Joshi
to represent them. As per the contentions raised in Civil
Miscellaneous Application, said Mr. Joshi, learned Advocate informed
Appellant that as and when the suit would come for hearing, he
would inform them. In the meanwhile, on 20 th November 2012, the
Appellants received notice of execution and therefore, they made
inquiries and came to know that the said learned Advocate Mr. Joshi
has passed away and the suit proceeded ex-parte. Thereafter,
immediately, on 10th December 2012, the Appellants applied for
certified copy. The said copies were received on 13 th December 2012
and Miscellaneous Civil Application No.2 of 2013 seeking delay
condonation was filed on 3rd January 2013. Therefore, there are
sufficient reasons given for condonation of delay in filing the Second
Appeal.
4. The learned First Appellate Court has not taken into
consideration the same. The decree passed is of possession and
therefore, it is necessary in the facts and circumstances of this case to
allow Civil Miscellaneous Application No.2 of 2013 for condonation
of dealy. However, since the Respondent - Trust has to incur some
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expenses, the Second Appeal is allowed on the condition that the
Appellants pay to the Respondent - Trust Rs.15,000/- within a period
of two weeks from today.
5. Thus, I pass the following order:-
ORDER
(i) The impugned Judgment and Order dated 30 th December
2019 passed by learned District Judge-2, Pandharpur in
Civil Misc. Application No.2 of 2013 is quashed and set
aside;
(ii) Civil Misc. Application No.2 of 2013 filed in the Court of
District Judge, Pandharpur, District Solapur is allowed by
condoning delay in filing appeal challenging Judgment
and Decree dated 26th September 2011 passed in Regular
Civil Suit No.351 of 1988 by learned Joint Civil Judge,
Junior Division, Pandharpur;
(iii) The learned First Appellate Court is requested to dispose
of the Appeal challenging the judgment and decree dated
26th September 2011 passed in Regular Civil Suit No.351
of 1998 on or before 31st July 2023;
(iv) Till disposal of said Appeal, execution of decree passed
by the learned Trial Court shall remained stayed;
954-sa-354-2021.doc
(v) It is needless to clarify that the contentions on merits are
not examined by this Court and are expressly kept open;
(vi) The Appellant to pay cost of Rs.15,000/- to the
Respondents - Trust within two weeks from today.
(vii) Second Appeal is disposed of in above terms.
(MADHAV J. JAMDAR, J.)
