Bombay High Court
Nilesh Dattatrya Madke vs Dilip Sahebrao Madke And Others on 11 January, 2022
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.6352 OF 2019
IN
SAST/16005/2019
NILESH S/O DATTATRYA MADKE
VERSUS
DILIP S/O SAHEBRAO MADKE AND OTEHRS
.....
Advocate for Applicant : Mr. A. N. Barhate Patil
Advocate for Respondent No.3 : Mr. M. A. Kulkarni
Advocate for Respondent No.5 : Mr. D. A. Madake
Advocate for Respondent No.4 : Mr. S. G. Jadhavar
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
30-11-2021
Date of Pronouncing the Order :
11-01-2022
ORDER :
1. Present application has been filed for getting the delay of 354
days condoned in filing second appeal.
2. The applicant is original defendant No.6 in Regular Civil Suit
No.511 of 2006 filed by present respondent No.3 before Civil Judge,
Junior Division, Kallam District Osmanabad, for partition and separate
possession. It came to be decreed on 24-09-2009. In fact, at that
time the present applicant was minor and was represented by guardian
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mother. The said Judgment and decree came to be challenged by
original defendants No.2 and 4 by filing Regular Civil Appeal No.199
of 2010 before learned District Judge-1, Osmanabad. Present
applicant was respondent No.5 and even at that time he has been
shown as minor. The said appeal came to be dismissed on 12-03-
2018. Now the applicant/original defendant No.6 want to challenge
these Judgments and decree passed by the Courts below, however,
there is delay. Hence, this application has been filed.
3. Heard learned Advocate Mr. A. N. Barhate Patil for applicant,
learned Advocate Mr. M. A. Kulkarni for respondent No.3, learned
Advocate Mr. D. A. Madake for respondent No.5 and learned
Advocate Mr. S. G. Jadhavar for respondent No.4. Perused the
affidavit-in-reply filed by respondents No.3 and 4.
4. Learned Advocate appearing for the applicant submitted that
admittedly in the appeal that was filed by the original defendants
No.2 and 4, the present applicant was shown to be minor and was
represented through his guardian mother. The applicant was not
having knowledge about filing of suit and appeal against him. Even
after he became major, his guardian has not given information about
the same. In Deember 2018 he received notice about measurement
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and, therefore, he asked his guardian mother the purpose for which
it has been issued to him. He then came to know about the
litigation. Therefore, he collected the certified copies which were
received by him on 16-01-2019. He gave instructions for filing
second appeal in the month of February 2019 by coming down to
Aurangabad. However, in the month of March 2019 he became busy
in the examination of 2nd year B.Sc. Which he was pursuing.
Thereafter, after collecting money for the Court fees and the
Advocate fees, he again contacted his Advocate. As there was no
proper rain fall in Osmanabad District and he is having only
agricultural land as a source of income, he could not arrange the
money. His Advocate then informed that due to the summer
holidays, the Court would be closed and, therefore, he filed the
second appeal along with the application on 29-05-2019. The
reasons for delay are genuine and bonafide and, therefore, it
deserve to be condoned.
5. Per contra, the learned Advocate appearing for respondents
No.3, 4 and 5 objected the application and submitted that already
the decree has been executed in favour of respondent No.3 and the
possession of the share of the original plaintiff has been given to him
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on 16-11-2019. The reasons given in the application are not
sufficient much less reasonable. There was no hurdle for the
guardian to file appeal if the minor's interest was getting affected.
6. At the outset, it is to be noted that at the time when the suit
was filed against the present applicant, he is shown aged 08 and
was represented through guardian mother, though it appears that
defendant No.3 Dattatrya Sahebrao Madke-his father was also party
to the suit. After the suit was decreed on 24-09-2009 which had
consumed about three years period, we can say that when the suit
was decided, the defendant would have been around 11-12 years
old. Neither the father of the present applicant nor the mother
guardian had tried to file any appeal. The appeal was filed by
original defendants No.2 and 4 who appear to be the brothers of the
father of the applicant. According to the applicant, he had
purchased (during his minority) land bearing Gut No.416
admeasuring 1 H 14 R situated at village Moha Tq. Kallam
Dist.Osmanabad on 04-02-2006 and, therefore, the minor applicant
is claiming interest in the property which has been decreed to be
partitioned. Though as it appears that the decree has been
executed, yet the interest of the applicant is stated to be still there
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and he can agitate it. The only question is, whether he has given
good grounds to condone the delay. According to him, his mother
has not protected his interest and had not filed appeal. It is also to
be noted that the appeal came to be filed on 09-11-2009, and as
aforesaid, at that time the age of the present applicant would have
been around 11 to 12 years, yet he was shown of the same age i.e.
08 years as he was shown in the suit. But then it took about 07
years 07 months for the First Appellate Court to decide the suit.
Definitely during the course of the appeal, the present applicant
would have attended the majority. But then there was no
amendment made by the appellants to that effect nor the guardian
came forward and informed the Court that the minor has now
attended the majority. Under that circumstances, the applicant
contends that he came to know about the litigation in 1 st December,
2018. He collected the certified copies on 16-01-2019, contacted
the Advocate in February 2019. He further states that he was busy
with his exams of March 2019, but ultimately filed the application
with the second appeal on 29-05-2019. No doubt applicant has not
given account of each and every day, yet taking into consideration
the minor's interest involved in the case and the fact that he was
admittedly taking education, leniency is required to be shown to
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him. The delay deserves to be condoned. Under the above said
circumstances, this Court does not find the case to be fit to award
cost. With these observations, following order is passed.
ORDER
1) The application stands allowed.
2) The delay of 354 days caused in filing second
appeal stands condoned.
3) Registry is directed to verify and register the
second appeal.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
