Bombay High Court
Devidas Zagdu Koli vs Subhash Sravan Koli on 19 January, 2022
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
906 CIVIL APPLICATION NO.14277 OF 2019
IN SAST/33688/2019
Devidas Zagdu Koli .. Applicant
Versus
Subhash Sravan Koli .. Respondent
...
Advocate for Applicant : Mr. Prakashsing B. Patil
Advocate for Respondent : Mr. Girish Rane
...
WITH
CIVIL APPLICATION NO.14278 OF 2019
IN SAST/33688/2019
....
WITH
907 CIVIL APPLICATION NO.14308 OF 2019
IN SAST/33694/2019
Devidas Zagdu Koli .. Applicant
Versus
Subhash Sravan Koli .. Respondent
...
Advocate for Applicant : Mr. Prakashsing B. Patil
Advocate for Respondent : Mr. Girish Rane
...
CORAM : MANGESH S. PATIL, J.
DATE : 19-01-2022
PER COURT :
. In fact these are two separate applications for
condonation of delay of 178 days caused in filing separate appeals in
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respect of the selfsame dispute arising out of passing of a decree by
the trial court.
2. Heard both the sides.
3. Mr. Patil, learned advocate for the applicants submits
that the applicants are the original defendants, who had purchased
the suit properties from the father of the respondent and without
challenging the transfers straightway a decree for partition has been
obtained. There was a communication gap. The learned advocate,
who was appearing for the appellant, did not inform the decision of
the first appellate court to the appellant. He resides in a remote
village. For all these reasons the delay has occasioned. There are no
mala fides. Valuable right over the immovable property would be lost
by sheer technicalities and he, therefore, prays to condone the delay.
4. Mr. Rane, learned advocate for the respondents strongly
opposes the applications. He submits that the very ground about the
applicants having received knowledge about the decision of the first
appellate court on 01-10-2019 can be falsified from the fact that they
were already served with a notice of the execution proceeding and
even they had put in appearance on 07-09-2019. He would then
submit that these are not the days where there could be any
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communication gap because of the remoteness of the location. The
appellants had been negligent throughout. They did not contest the
suit and even there was a delay in filing the first appeal. It is only
after the respondents filed the first appeals being aggrieved and
dissatisfied by not decreeing the suit wholly that the appellants chose
to file these appeals. The conduct of the appellants demonstrates
that they are not prompt enough and do not deserve any
discretionary relief.
5. Having considered the rival submissions made by the
learned advocate appearing for the respective parties and perusal of
the record, one need to bear in mind the well settled principles
recognized by the Supreme Court time and again in the matters of
condonation of delay. One need only to refer to some of such
judgments in the matters of Collector Land Acquisition, Anantnag &
Anr. Vs. Mst. Katiji & Ors; 1987 SCR (2) 387 and Ramlal, Motilal and
Chhotelal Vs. Rewa Coalfields Ltd; 1962 SCR (3) 762.
6. Having considered the facts of the matter, it does appear
that the appellants have not been prompt since inception. They did
not make any attempt to contest the suit, even there was a delay in
preferring the appeal before the district court and again there is a
delay of 178 days in filing the present appeals.
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7. It is also apparent that since they had already appeared
in the execution proceeding on 07-09-2019, the statement in the
applications that they got the knowledge about passing of the
judgment by the appellate court on 01-10-2019 is factually incorrect.
8. But then, it is trite that in order to refuse the
discretionary relief of the nature being prayed for, there should be
something to demonstrate mala fides on the part of the party. It is
pertinent to note that a party does not get benefited by allowing his
right to be defeated by lapse of time. The costs are considered to be
appropriate remedy in such matters when the delay is not inordinate
one. It is always appropriate to allow the matters to be decided on
merits rather than by default. The present matters are in respect of
immovable properties.
9. In the circumstances, Civil Application Nos.14277 of
2019 and 14308 of 2019 are allowed and the delay is condoned
subject to the applicants / appellants paying costs of Rs. 5,000/- each
to the respondent to be deposited in this Court within two weeks.
( MANGESH S. PATIL )
JUDGE
Gajanan
