Deepak Sudam Lokhande vs Sanjay Mahadev Lokhande And Ors
2022 Latest Caselaw 1824 Bom

                                                                               24 WP-1798-22.doc

BDP-SPS-TAC

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  BHARAT
  DASHARATH
  PANDIT                                 CIVIL APPELLATE JURISDICTION
  Digitally signed
  by BHARAT
  DASHARATH
  PANDIT
  Date: 2022.02.25
                                       WRIT PETITION NO. 1798 OF 2022
  12:56:26 +0530




                     Shri Deepak Sudam Lokhande                        ....Petitioner
                           V/s
                     Shri Sanjay Mahadev Lokhande and Ors              .....Respondents
                     ---
                     Mr. Prabhanjan Gujar for the Petitioner.
                     ----

                                          CORAM: NITIN W. SAMBRE, J.

                                          DATE:     FEBRUARY 23, 2022

                     P.C.:-


                     1]       After having heard Mr. Gujar, learned Counsel for the Petitioner -

original judgment debtor in decree for partition, what can be noticed

is, cross-objection preferred under Rule 22 of Order 41 is at belated

stage i.e. almost after the period of more than five years. Application

for condonation of delay does not speak of any specific reason so as to

establish bonafides of the Petitioner. Apart from above, it can be

noticed that the cross objection preferred is not in tune with the

provisions of Order 1 Rule 41 as contemplated under Rule 22 of the

said Order.

2] In the aforesaid backdrop, Mr. Gujar, learned Counsel for the

24 WP-1798-22.doc

Petitioner would make motion for withdrawal of the present Petition.

3] Petition stands disposed of as withdrawn with following

directions.

4] Petitioner is permitted to withdraw the cross-objection in the

form of cross appeal preferred under Order 41 Rule 22 with the

application for condonation of delay. Petitioner shall be at liberty to

take out fresh proceedings under Order 41 Rule 22 read with Rule 1

coupled with the application for condonation of delay which shall be

decided independently without being influenced by disposal of the

present Petition.

5] Trial Court while dealing with the said proceedings shall be

sensitive to the fact that the Court has sufficient power to condone the

delay caused in preferring cross objection. The Court must have

regard to law laid down by the Apex Court in the case of Mahadev

Govind Gharge and Others vs. Special Land Acquisition Officer

reported in (2011) 6 SCC 321, particularly paras 39 and 40.

24 WP-1798-22.doc

6] Needless to clarify that time spent in pursuing the cross objection

and present Petition be considered at the time of dealing with the issue

of limitation.

( NITIN W. SAMBRE, J. )