Bombay High Court
Kantadevi W/O.Vijaykumar Thole vs Khanderao Rambhau Gaikwad And Ors on 15 February, 2022
Bench: S. K. Shinde
Rane 1/6 CA-3579&2611-2019(Adv.R.V. Govilkar).odt
15/2/2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 3579 OF 2019
(FOR CONDONATION OF DELAY)
ALONGWITH
CIVIL APPLICATION NO. 4365 OF 2016
(FOR RESTORATION)
IN
CIVIL APPLICATION NO. 197 OF 2008
IN
CIVIL APPLICATION NO. 2019 OF 2005
IN
FIRST APPEAL (ST.) NO. 32159 OF 2004
SMT. KANTADEVI W/O. VIJAYKUMAR
THOLE } APPLICANTS
(ORIG. APPELLANT)
V/S.
SHRI. KHANDERAO RAMBHAU GAIKWAD
AND ORS. } RESPONDENTS
-------
Mr. R.V. Govilkar a/w. Mr. Mihir Govilkar a/w. Ms. Shaba N.
Khan, Advocate for the applicant-appellant.
Mr. Sanjay P. Shinde, Advocate for respondent no.1.
Ms. Prabha Badadare i/by. Mr. H.G. Misar, Advocate for
respondent no.2.
Smt. Urmila K. Sanil, Advocate for respondent no.4.
Rane 2/6 CA-3579&2611-2019(Adv.R.V. Govilkar).odt
15/2/2022
ALONGWITH
CIVIL APPLICATION NO. 2611 OF 2019
(FOR CONDONATION OF DELAY)
IN
CIVIL APPLICATION NO. 4411 OF 2016
(FOR RESTORATION)
IN
CIVIL APPLICATION NO. 2021 OF 2005
IN
FIRST APPEAL (ST.) NO. 32155 OF 2004
ARCHANA VIJAYKUMAR THOLE
@ MRS. ARCHANA R. JAIN } APPLICANT
(ORIG. APPELLANT)
V/S.
SHRI. KHANDERAO RAMBHAU
GAIKWAD & ORS. } RESPONDENTS
****
Mr. R.V. Govilkar a/w. Mr. Mihir Govilkar a/w. Ms. Shaba N.
Khan, Advocate for the applicant-appellant.
Mr. Sanjay P. Shinde, Advocate for respondent no.1.
Ms. Preeti Phanse i/by. Mr. Amol Gatne, Advocate for
respondent no.2.
Coram : Sandeep K. Shinde, J.
Closed for orders on : 10th February, 2022.
Pronounced order on : 15th February, 2022.
Rane 3/6 CA-3579&2611-2019(Adv.R.V. Govilkar).odt
15/2/2022
P.C. :
1) Member, Motor Accidents Claim Tribunal,
Nashik by judgment and order dated 11th February, 2002
dismissed Claim Petitions No. 393/1994 against all
respondents; whereas dismissed Claim Petition No.
392/1994 against respondents no.1 and 2 i.e. Khanderao
Rambhau Gaikwad and United India Assurance Company
Limited. Smt. Kantadevi Thole, claimant in M.A.C.P. No.
393/1994 preferred First Appeal (St.) No.32159/2004
alongwith Civil Application No.2019/2005, seeking
condonation of delay caused in preferring the First Appeal.
2) Smt. Archana Vijaykumar Thole, claimant
in M.A.C.P. No.392/1994 preferred First Appeal (St.)
No.32155 of 2004 alongwith Civil Application
No.2021/2005 seeking condonation of delay caused in
preferring the First Appeal.
3) On 28th February, 2008 Civil Application
No. 2019 of 2005 fled by Smt. Kantadevi Thole, for
condonation of delay was dismissed in default. Likewise,
Civil Application No. 2021 of 2005 fled by Archana Thole
seeking condonation of delay came to be dismissed in view
of the self-operative order dated 20th September, 2007.
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4) Smt. Kantadevi Thole and Smt. Archana
Thole fled Civil Applications No.4411/2016 and 4365/2016
for restoration of their delay condonation applications, and
for condonation of 8 years 22 days, delay, caused in
preferring the restoration applications.
5) Applicant- Smt. Kantadevi Thole and Smt.
Archana Thole attributed negligence to Advocate's Clerk,
because of which applications were dismissed.
Attributions of negligence have been averred in
paragraphs no. 8, 10 and 12 of the applications.
6) Mr. R.V. Govilkar, Learned Advocate was
appearing for the applicants.
7) Both the applications when came up for
consideration before Justice Dr. Smt. Shalini Phansalkar-
Joshi on 4th February 2019, Court was of the opinion that,
the applicants ought to have preferred two separate Civil
Applications; one seeking restoration and another for
condonation of delay. Therefore, Smt. Kantadevi Thole fled
Civil Application No. 3579/2019 seeking condonation of
delay; whereas Smt. Archana Thole fled Civil Application
Rane 5/6 CA-3579&2611-2019(Adv.R.V. Govilkar).odt
15/2/2022
No. 2611/2019 seeking condonation of delay. Thus, four
applications are placed before me for consideration.
8) Heard Mr. R.V. Govilkar, learned Counsel for the
applicants in both the appeals and Counsel for the
respondents therein.
9) Mr. Govilkar, has taken me through the
averments of the applications, to contend that the mistake
committed by his Clerk was through oversight and it was
neither deliberate nor intentional and therefore although
the delay was of eight years plus, the appellants cannot be
made to suffer for the mistake and/or carelessness of
Advocate's Clerk. Mr. Govilkar, therefore submitted that in
the interest of justice, the orders dismissing the Civil
Applications No.2019/2005 and Civil Application
No.2021/2005 in respective First Appeals be restored to
fle.
10) Here, it is certain that due to oversight of
Advocate's Clerk, Civil Applications in both the First
Appeals were dismissed. Therefore, on that count alone,
applicant's statutory right of Appeal, cannot be defeated.
At the same moment, respondents-original defendants
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15/2/2022
cannot be endured to defend the proceedings, nearly after
twenty two years, which were culminated in their favour
without awarding cost to them. Thus, taking overview of
the matter, the delay occurred in moving the restoration
application can be condoned subject to costs of Rs.20,000/-
(Rs. Twenty Thousand) payable to respondents no.1, 2 and
4, each, in Civil Application No.2611/2019 and respondents
no.1, 2 and 4 in Civil Application No. 3579/2019 within
four weeks from today. Thus, subject to payment of cost,
Civil Applications No. 3579/2019, Civil Application No.
4365/2016 in First Appeal (St.) No.32159/2004 AND Civil
Application No. 2611/2019 and Civil Application
No.4411/2016 in First Appeal (St.) No.32155/2004 are
allowed.
11) It is clarifed that, if the costs are not paid as
directed, the applications shall stand dismissed without
further reference to this Court.
12) Subject to above, the applications are allowed
and disposed of.
Digitally
signed by
NEETA
NEETA
SHAILESH (Sandeep K. Shinde, J.)
SHAILESH SAWANT
SAWANT Date:
2022.02.15
16:35:33
+0530
