Bombay High Court
Dattatraya Laxman Misal And Anr vs Govind Narayan Misal And Ors on 8 June, 2022
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.593 OF 2011
WITH
CIVIL APPLICATION NO.13670 OF 2011
1) Dattatraya S/o Laxman Misal,
Age-45 years, Occu:Driver,
R/o-Rablewandi Sugar, Tq-Shrigonda,
Dist-Ahmednagar,
2) Shri Santosh S/o Laxman Misal,
Age-42 years, Occu:Driver,
R/o-Loni Vaynknath, Tq-Shrigonda,
Dist-Ahmednagar.
...APPELLANTS
(Orig. Defendant Nos.6 & 7)
VERSUS
1) Govind S/o Narayan Misal
(Dead) Through his LR's:
1A) Smt. Shantabai S/o Govind Misal
(Dead),
1B) Appa S/o Govind Misal,
Age-46 years, Occu:Agri.,
1C) Sanjay S//o Govind Misal,
Age-35 years, Occu:Agri.,
Respondent Nos.1A to 1C
R/o-Hirdewadi, Tq-Shrigonda,
Dist-Ahmednagar,
1D) Bababai Sonba Shikore,
Age-66 years, Occu:Agri.,
R/o-Khamgaon, Tq-Jamkhed,
Dist-Ahmednagar,
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1E) Subhadra Tulshiram Davale,
Age-61 years, Occu:Agri.,
1F) Madhurabai Vitthal Hirde,
Age-51 years, Occu:Agri.,
Respondent Nos.1E to 1F
R/o-Hirdewadi, Tq-Shrigonda,
Dist-Ahmednagar.
1G) Chaturabai Popat Wadavkar,
Age-41 years, Occu:Agri.,
R/o-Patoda, Tq-Jamkhed,
Dist-Ahmednagar,
2) Bhau Bansi Misal,
Age-46 years, Occu:Agri.,
R/o-Adalgaon, Tq-Shrigonda,
Dist-Ahmednagar,
3) Dilip S/o Bansi Misal,
Age-41 years, Occu:Agri.,
R/o: C/o-Nandkishor Namdeo Shikare,
2/12/Padmavati Apartment,
Ramdaswadi Kalyan(P) 421304,
4) Dagdabai Namdeo Shikare
(Appeal against Respondent No.4 dismissed
as per Court's order dated:22-07-2016,
5) Bhau S/o Narayan Misal,
Age-76 years, Occu:Agri.,
6) Rama S/o Laxman Misal,
Age-46 years, Occu:Agri.,
7) Kondiba S/o Babu Misal,
Age-56 years, Occu:Agri.,
8) Sakhubai Kondiba Misal,
Age-56 years, Occu:Agri.,
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9) Saraswati Namdeo Misal,
Age-56 years, Occu:Agri.,
10) Swati Nadeo Misal,
Age-28 years, Occu:Agri.,
11) Baburao S/o Namdeo Misal,
Age-27 years, Occu:Agri.,
12) Dwarkabai W/o Jijaba Kale,
Age-51 years, Occu:Agri.,
13) Badamabai Jijaba Kale,
Age-46 years, Occu:Agri.,
Respondent Nos.4 to 13 R/o-Kokangaon,
Tq-Shrigonda, Dist-Ahmednagar.
14) Yamunabai Laxman Hirde,
(Dead) Through her Lrs:
14-a) Vitthal Laxman Hirde,
Age-60 years, Occu:Agri.,
14-b) Pandurang Laxman Hirde,
Age-58 years, Occu:Agri.,
14-c) Rama Laxman Hirde,
Age-55 years, Occu:Agri.,
14-d) Anna Laxman Hirde,
Age-52 years, Occu:Agri.,
14-e) Dada Laxman Hirde,
Age-49 years, Occu:Agri.,
14-f) Madhukar Laxman Hirde,
Age-43 years, Occu:Agri.,
Respondent Nos.14-a to 14-f R/o-Hirdewadi,
Tal.Shridonga, Dist-Ahmednagar.
...RESPONDENTS
(Resp. Nos.1A to 1G Orig. Plaintiffs)
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...
Mr.S.P. Salgar Advocate h/f. Mr.N.V. Gaware Advocate
for Appellants.
Mr.Yogesh Kale Advocate h/f. Mr. R.R. Karpe Advocate
for Respondents.
...
CORAM: SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING ORDER : 3rd DECEMBER 2021
DATE OF PRONOUNCING ORDER : 8th JUNE 2022
ORDER :
1. Present Appeal has been filed by original Defendant Nos.6
and 7 to challenge the order passed by the learned Principal
District Judge, Ahmednagar in Civil Misc. Application No.57 of
2007 on 27th September 2011, whereby their application under
Section 5 of the Limitation Act to condone the delay came to be
rejected.
2. Heard learned Advocate appearing for the appellants and
learned Advocate appearing for the respondents.
3. It has been vehemently submitted on behalf of the
appellants that the impugned order is illegal. Learned Principal
District Judge failed to exercise the discretion when the delay
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caused in filing the appeal was properly explained. Defendant
Nos.6 and 7 were served with the suit summons but they failed
to appear and therefore, initially, suit had proceeded, ex-parte
against them by order dated 7th April 2001. However, that order
was got set aside by them below Exhibit-22 by order dated 14 th
August 2001. Thereafter they had filed written statement. The
Advocate engaged by them had, thereafter, not informed the
progress of the case and all of a sudden gave no instruction
purshis on 18th October 2004, without giving any kind of
intimation to the present appellants. Thereafter the Judgment
has been delivered on 20th October 2004. The said fact came to
the knowledge of the appellants on 10 th March 2007 and
therefore, they had prayed for condonation of delay of 845 days
in filing of the appeal. There was absolutely no negligence on
their part but due to the negligence on the part of their
Advocate to communicate the progress, they could not attend
the further Court proceedings. Appellants had examined
Dattatraya Laxman Misal to support the reasons, but he has
been disbelieved. When the law requires that the Appellate Court
should be considerate in considering the delay applications, the
learned Principal District Judge appears to have adopted rigid
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view and therefore, substantial questions of law are arising in
this case, requiring admission of the Second Appeal.
4. Per contra, the learned Advocate appearing for the
respondents has relied on the reasons given by the learned
Principal District Judge while rejecting the application for
condonation of delay and submitted that no reasonable ground
was shown by the present appellants for condonation of delay of
845 days. Even the respondents have examined Appa Govind
Misal to support their contention objecting the application. The
plaintiffs / respondents had filed the said suit for partition and
separate possession. Even, initially, the present appellants /
defendants had not appeared before the trial Court and the
matter had proceeded ex-parte. They got that order set aside
and even took part in the proceeding by filing written statement.
Thereafter they ought to have kept the track. It is not the job of
the Advocate only to inform the progress of the case to the
client, but even the client also should be in touch with the
Advocate. It has come on record that the present appellants are
residing at village Belwandi Sugar and village Loni Vyanknath
respectively, which are at a distance of about 6 to 7 Kms. from
each other. The proceedings were taken before the trial Court at
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Shrigonda and the distance between those two villages and
Shrigonda is about 10 to 12 Kms. Appellant - Dattatraya Misal
has also admitted that he goes to Shrigonda for various reasons,
oftenly. He could have definitely gone to the office of his
Advocate to make inquiry as to what is the status of his
litigation. Those precautions have not been taken by the
appellants which are expected from a good litigant. Under such
circumstances, the Principal District Judge was justified in
rejecting the application on the ground that no sufficient and
reasonable ground has been shown to condone the delay.
5. Learned Advocate for the appellants has relied on the
decision in N. Balakrishnan vs. M. Krishnamurthy, 1998 AIR
(SC) 3222. In this Case, the Hon'ble Supreme Court had
condoned the delay of 883 days when it was found that as a
matter of fact it was the counsel who did not pursue the petition
and allowed it to be dismissed in default and the appellant
therein came to know about it on receipt of execution warrant.
6. Learned Advocate for the respondents has relied on the
decision in P.K. Ramachandran vs. State of Kerala, 1998
AIR (SC) 2276, wherein it has been observed that, the High
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Court did not examine the reply filed by the appellant as
reference to the same was conspicuous by its absence from the
order. There was no explanation, much less a reasonable or
satisfactory one offered by the respondent for filing appeal after
565 days. The order condoning the delay therefore, was not
sustainable. It was then observed in the same decision that, law
of limitation may harshly affect a particular party but it has to be
applied with all its rigour when the statute so prescribes and the
courts have no power to extend the period of limitation on
equitable grounds. Further reliance has been placed on the
decision in Kamalbai Narasaiyya Shrimal and another vs.
Ganpat Vithalrao Gavare, 2007(1) Bom.C.R.51, wherein it
was held that, poverty is cited as ground for the condonation of
delay but it was not explained how this difficulty was
surmounted by them after six months and therefore, when no
proper explanation is given, delay cannot be condoned. Further
reliance has been placed on the decision in Vithal S/o
Dharmaji Potalwad (D) through LR and others vs.
Akrambee w/o Abdul Raheman (D) through LR and
others, 2014(6) ALL MR 392, wherein this Court held that,
plea that delay was caused due to ill health of the appellant,
facts on record show that every attempt was made by appellant
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to protract things, to delay execution and to defeat claim of
respondents, no sufficient cause was made out to condone delay
and therefore, the delay cannot be condoned. Accordingly, the
delay was not condoned. Similarly, the delay was not condoned
by this Court in Chandrakant S/o Laxman Kulbhaiyya and
another vs. State of Maharashtra and others, 2015(2)
Mh.L.J. 323, Shafi Yakub Pathan and others vs. akbar
Ramjan Pathan Died Through Lrs, Nasir Akbar Pathan and
others, (Civil Application No.6021 of 2015), decided by this
Court on 24th August, 2021.
7. At the outset, it can be seen that the delay that had
occurred in filing the first appeal before the District Court,
Ahmednagar, was 845 days. We cannot ignore the earlier act on
the part of the present appellants also. Initially also they had not
attended the Court though duly served. Again the trial Court was
required to exercise the discretion and upon the grounds shown,
the order of proceeding the matter ex-parte against them, came
to be set aside and they were permitted to take part in the
proceeding by filing written statement. After happening of this, it
was the boundant duty of the appellants to pay more attention
to the litigation, but it appears that they left it entirely to the
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Advocate. No doubt the Advocate has duty to inform the clients
about the stages of the litigation and what progress has been
made. But, equal duty is also on the clients also to remain in
touch with the Advocate and ask him about the progress of the
case. It cannot be one sided from any angle. It is to be noted
from the record of the trial Court, Exhibit-51 given by the
Advocate representing the appellants that he informed the Court
that though he had given messages to his clients, they are not
remaining present and therefore the matter be adjourned. This
application was given on 4th September 2004 and it came to be
granted. At Exhibit-54, ultimately, on 18 th October 2004, no
instructions purshis has been given by the Advocate. Even in the
no instructions purshis also, it is stated that messages were
given, phone call was made, letter was given and personally also
defendant Nos.5 to 9 therein were informed. The appellants have
contended that they had changed their address. However,
witness - Dattatraya Laxman Misal has not stated, as to why the
appellants had not told about the change of address to their
Advocate. If the Advocate would not have been informed about
change in address, how he was supposed to know about it.
Under such circumstance, everything cannot be left to the
Advocate only.
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8. The ratio in N. Balakrishnan vs. M. Krishnamurthy
(supra), will not be applicable to the facts of the present case, as
in the said case it was found that the Advocate had not pursued
the petition and allowed it to be dismissed in default. Here in the
present case, the concerned Advocate appears to have made
efforts and he says that he had informed about the next date to
the appellants. The appellants have not taken any action against
the concerned Advocate with the Bar Council of Maharashtra and
Goa. It is very easy to make allegations against a person who is
not before the Court. Therefore, it cannot be said that the
reasonable ground was proved by the appellants for condonation
of delay. The ratio laid down in the authorities relied by the
learned Advocate for the respondents, is applicable here. When
no sufficient ground is shown for condoning the delay, then the
learned Principal District Judge was justified in rejecting the
application for condonation of delay. No substantial questions of
law are arising in this case requiring admission of the Second
Appeal. It deserves to be dismissed at the threshold, as, at the
cost of repetition, no substantial questions of law as
contemplated under Section 100 of the Code of Civil Procedure
are arising in this case. One more fact noted is that, almost
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everything is completed now regarding the execution of the
decree and it appears from the record that has been received,
even the possession has been given to the respective sharers.
9. Under such circumstances, the Second Appeal stands
dismissed.
10. So also, Civil Application No.13670 of 2011, moved for
stay, stands rejected.
[ SMT. VIBHA KANKANWADI , J. ]
asb/MAY22
