Bombay High Court
Dattu Sahadu Veer And Others vs Shahaji Shivaji Veer And Others on 20 June, 2022
Bench: R. G. Avachat
42-SA-587-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 587 OF 2021
WITH CA/12548/2021 IN SA/587/2021
Dattu Sahadu Veer and Others ..APPELLANTS
VERSUS
Shahaji Shivaji Veer and Others ..RESPONDENTS
....
Mr. R.P. Phatke, Advocate for appellants
Mr. P.V. Nawale, Advocate h/f Mr. C.K. Katake, Advocate for respondent nos.
1 to 3
....
CORAM : R.G. AVACHAT, J.
DATE : 20th JUNE, 2022
PER COURT :
1. The challenge in this second appeal is to an order dated 22 nd
November, 2019 passed by the learned District Judge-1, Shrigonda rejecting
Civil Miscellaneous Application No. 31 of 2019 moved for condonation of
delay in preferring first appeal against the judgment and decree dated 19 th
June, 2016 passed in a suit, being Regular Civil Suit No. 295 of 2012. As
such, the appellants herein are the original defendants in the said suit.
2. The said suit was filed for seeking measurement of the suit land
for fixing of the boundaries and for recovery of possession of encroached
portion of the land, if any. The suit came to be decreed directing the
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42-SA-587-21.odt
appellants herein to handover the possession of 16 Gunthas of the land. As
such, the appellants herein suffered the decree for possession.
3. It is the case of the appellants herein that the advocate
representing them in the trial Court did not file written statement, nor did he
cross examine the witnesses examined by the plaintiff. It is also their case
that the advocate did not keep them posted of the progress of the suit and
result thereof as well. According to them, it is only when one of them went
to Shrigonda Court, it was realised that the suit came to be decreed. There
was, therefore, delay of 545 days in preferred the appeal.
4. The learned District Judge dismissed the delay condonation
application on the ground that the appellants herein had appeared in the
execution proceeding. They are educated one. One of them is a Headmaster.
5. Learned counsel for the respondents herein relying on the
judgments of the Hon'ble Apex Court viz. Estate Officer, Haryana Urban
Development Authority and Ors. Vs. Gopi Chand Atreja reported in AIR 2019
SC 1423 and Mohd. Sahid Vs. Raziya Khanam (D) Thr. L.Rs. reported in
2019 (1) ALJ 168, would submit that appellants themselves were negligent.
The appellants wanted to see that the original plaintiffs did not get relief
during their life time. They, therefore, urged for dismissal of the second
appeal.
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42-SA-587-21.odt
6. Considered the submissions advanced. Gone through the
authorities relied on. In the case of Gopi Chand Atreja (supra) there was
delay in preferring the second appeal. Both the Courts below had decided
the suit and appeal as well on merits of the matter. It needs no mention that
each and every case has to be decided on it's own facts. In the case in hand,
it appears that there was no written statement filed. The witnesses examined
were not cross-examined. The advocate concerned did not keep posted the
appellants of the development in the suit. All these facts have been averred
on affidavit. The suit was for possession of immovable property i.e. land
admeasuring 16 R. In such factual backdrop, the first appellate Court ought
to have condoned the delay to decide the appeal on it's own merits. Since the
same has not been done, this Court is inclined to allow this second appeal in
terms of following order :-
Second appeal is allowed, subject to cost of Rs.10,000/- (Rupees
Ten Thousand) to be paid to the respondents. The order impugned herein is
hereby set-aside. The first appellate Court shall decide the appeal on it's own
merits within a period of six months from the date of receipt of copy of this
order. Civil application stands disposed of accordingly.
( R.G. AVACHAT, J. )
SSD
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