Bombay High Court
Dnyandeo S/O Sukharamji ... vs Smt. Gangabai W/O Prabhakar Tidke ... on 6 July, 2022
Bench: Manish Pitale
910-CRA164.18.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVN. APPLN. NO. 164 OF 2018
Dnyandeo Sukharamji Fulbandhe
-Vs.-
Smt. Gangabai wd/o Prabahakar Tidke
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.N.G.Salao, counsel for the applicant.
Mr.P.R.Bhure, counsel for respondent Nos.1 to 6.
CORAM : MANISH PITALE, J.
DATE : 06.07.2022
Heard the learned counsel appearing for the
parties.
2. By this application, the applicant has challenged
order dated 24/10/2017, passed by the District Court at
Bhandara, whereby an application for condonation of
delay in filing appeal has been allowed. According to
the applicant, the respondents had failed to
demonstrate sufficient cause for condonation of delay of
6 years and 325 days and yet the Court below
proceeded to condone the delay.
3. In the present case, the applicant had filed a suit
for partition, specific performance and possession
against the respondents in the year 2004. The
respondents i.e. the defendants were represented by an
Advocate before the Court of Civil Judge, Senior
Division, Bhandara i.e. the Trial Court. On 17/12/2008,
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the Advocate representing the respondents filed a
pursis before the Trial Court withdrawing his
vakalatnama and thereafter, on 29/12/2008, the Trial
Court decreed the suit in favour of the applicant. The
decree was a preliminary decree and Precept was
directed to be sent to the Collector for effecting the
partition and ascertaining the separate share so that the
consequent decree of specific performance could be
further executed.
4. It is an admitted position that the appeal before
the District Court was filed after a delay of 6 years and
325 days in November, 2015.
5. In the application for condonation of delay, the
respondents sought to explain that they were totally
unaware about the decree passed by the Trial Court for
the reason that their Advocate, without informing them,
had withdrawn his vakalatnama. The Trial Court also
did not send any notice or information to the
respondents about the judgment and decree passed on
29/12/2008. It was contended that the respondents
became first aware of the judgment and decree when
notices were received from the Tahsildar in the year
2014. It was then submitted that the respondent No.1
contacted the Advocate, who kept on assuring her about
the necessary steps to be taken in that regard and
eventually when nothing was forthcoming, the
respondents were constrained to engage another
Advocate, who applied for certified copies and took
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further action to file appeal along with the application
for condonation of delay. The said application was
opposed by the applicant herein. As noted above, by
the impugned order, the District Court allowed the
application for condonation of delay and directed that
the appeal would be taken up for consideration on
merits.
6. This Court issued notice in the present
application on 25/02/2019 and the respondents
entered appearance through counsel. The application is
taken up for final disposal today.
7. Mr.Solao, learned counsel appearing for the
applicant, vehemently submitted that the District Court
erred in condoning the delay of 6 years and 325 days
when the material on record demonstrated that the
respondents had failed to show sufficient cause for
condonation of delay. Attention of this Court was
invited to the chronology of events, the contents of the
application for condonation of delay, the affidavit filed
on behalf of the respondent No.1 in the District Court
and the admissions given by her in cross-examination.
On this basis, it was submitted that not only was the
respondent No.1 aware about the proceeding, but her
sons, who were well educated engineers were also
aware about the same and yet they chose not to take
immediate action in the matter, demonstrating that no
sufficient cause was made out for condonation of delay.
It was submitted that in the face of the record showing
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that notices from the Tahsildar were received and the
respondents were present before the Tahsildar on
04/06/2014, it could not be said that the delay had
been sufficiently explained.
8. On the other hand, Mr. Bhure, learned counsel
appearing for the respondents, submitted that the
Advocate representing the respondents had not put the
respondents to notice before withdrawing his
vakalatnama, the Trial Court had also not issued any
notice to the respondents and proceeded to deliver the
judgment and decree. It was also brought to the notice
of this Court that requirement of Order XX Rule 5A of
the Code of Civil Procedure was violated by the Court
itself and that after the notices were received from the
Tahsildar, the respondent No.1 had approached the
Advocate and thereafter, the respondents were
constrained to engage another Advocate to take
necessary action in the matter. It was submitted that
these aspects were correctly appreciated while
condoning the delay. It was further brought to the
notice of this Court that as on today, the appeal before
the District Court is at the stage of final hearing and in
the interest of justice, this Court may not interfere with
the impugned order.
9. Heard the learned counsel for the parties and
perused the material on record. It is settled law that
once a Court has found sufficient cause for condonation
of delay and delay has been condoned, this Court while
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exercising revisional jurisdiction would be slow in
interfering with such an order condoning delay.
Interference would be justified, if it is brought to the
notice of this Court that the findings rendered by the
Court below are perverse or that the respondents who
sought condonation of delay had indulged in falsehood
or suppression of facts before the Court below.
10. This Court has perused the material on record. It
is found that the Advocate representing the respondents
withdrew his vakalatnama before the Trial Court on
17/12/2008. There is nothing on record to show that
the said Advocate had ever put the respondents to
notice that he was withdrawing his vakalatnama. The
Trial Court also did not issue any notices to the
respondents when they went unrepresented upon
withdrawal of vakalatnama by the said Advocate. There
is also nothing on record to show that the requirement
of Order XX Rule 5A of the Code of Civil Procedure was
satisfied, where under the Court was required to inform
the party, which was not represented by Advocate,
about the order passed by the Court and other such
details as regards the limitation. Therefore, there is
substance in the contention raised on behalf of the
respondents that they were not aware about the
judgment and decree passed by the Trial Court.
11. It has also come on record that after the
respondents received notices from the Tahsildar and
became aware about the judgment and decree passed
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by the Trial Court, the respondent No.1 did make
efforts to contact her Advocate, who kept on assuring
her that he would look into the matter. Thereafter, the
respondent No.1 was constrained to engage another
Advocate, who took necessary steps for obtaining
certified copies and for filing the appeal along with the
application for condonation of delay.
12. Much emphasis was placed by the learned
counsel for the applicant on statements made in the
cross-examination by the respondent No.1 to the effect
that although she was educated only till the 2 nd
standard, two of her sons were engineers and one son
was a clerk. It was emphasized that the sons of the
respondent No.1 were well educated and they too were
aware about the proceeding and once notices were
received from the Tahsildar, nothing prevented the
respondents from immediately approaching the District
Court.
13. This Court is of the opinion that even after
taking into account the aforesaid statements made in
the cross-examination and proceeding on the basis that
the sons of the respondent No.1 being well educated
were aware about the consequences of the decree
passed by the Trial Court, it cannot be said that the
respondents were recalcitrant in their approach or that
they did not take necessary steps in the matter. It
appears that the respondent No.1 and her family had
shifted from Bhandara to Nagpur, her daughters were
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married off and one of her sons was also required to
relocate at another place because of employment. In
these circumstances, it can be reasonable to conclude
that if the respondent No.1 was the only person
pursuing the matter, being person with limited
education, she did place full faith in the Advocate, who
kept on promising her about necessary steps being
taken. It was only when another Advocate was engaged
that immediate action was taken and the appeal along
with the application for condonation of delay came to
be filed in November, 2015.
14. These aspects have been appreciated in the
correct perspective by the District Court while passing
the impugned order. It cannot be said that the findings
rendered by the District Court are either perverse or
unreasonable. There is no material to indicate that the
respondents engaged in any falsehood or suppression of
facts, while seeking condonation of delay.
15. The learned counsel for the respondents is
justified in relying upon judgment of the Hon'ble
Supreme Court in the case of Ram Nath Sao v.
Gobardhan Sao, reported in AIR 2002 SC 1201, wherein
it was emphasized that refusal to condone delay would
result in foreclosing a suitor from putting forth his
cause. In such matters, it is evident that the respondents
had nothing to gain and everything to lose by
approaching the District Court after delay. The delay in
the facts and circumstances of the present case cannot
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be said to be of 6 years and 325 days, since even
according to the applicant, the notices issued by the
Tahsildar were received and the respondents remained
present before the Tahsildar in June, 2014. The period
thereafter has been satisfactorily explained by the
respondents and therefore, no interference is warranted
in the impugned order.
16. Accordingly, the revision application is
dismissed. The Appellate Court shall proceed to decide
the appeal on merits, in accordance with law.
JUDGE
Signed By:GHANSHYAM S
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Signing Date:08.07.2022 14:41
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