Bombay High Court
Sanjay Banusaheb Thorat vs Dattatray Asaram Ugale And ... on 2 March, 2022
Bench: Mangesh S. Patil
1 SA / 160 / 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 160 OF 2021
Sanjay S/o. Banusaheb Thorat,
Age : 43 years, Occupation : Agril.,
R/o. Naigaon, Tq. Paithan, Dist. Aurangabad
At present - Sai Nagar, Plot no. 1089,
N-6, CIDCO, Aurangabad .. Appellant
(Deft. No. 1)
VERSUS
1] Dattatray S/o. Asaram Ugale
Age : 55 years, Occupation : Agril.,
R/o Naigaon, Tq. Paithan,
Dist. Aurangabad (Plaintiff)
2] Hiraman S/o. Chagan Bangre
Age : 59 years, Occupation : Agril.,
R/o. Naigaon, Tq. Paithan,
Dist. Aurangabad (Defendant no. 2) .. Respondents
(No. 1 - Plaintiff
No. 2 - Deft. No. 2)
AND
CIVIL APPLICATION NO. 3677 OF 2021
(Sanjay Banusaheb Thorat V. Dattatray Asaram Ugale and anr.)
...
Mr. A.B. Kale and Mr. G.L. Deshpande Advocate for the appellant
Mr. J.S. Aute, Advocate for respondent no. 1
...
CORAM : MANGESH S. PATIL, J.
DATE : 2 MARCH 2022
ORAL ORDER :
Mr. Kale for the appellant submits that pursuant to the
liberty granted by order dated 10-08-2021, he has already filed affidavit
along with the track report certifying that private notice was duly served
to the respondent no. 2. He submits that no relief is being claimed
against the respondent no. 2 and he is merely a formal party. He,
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therefore, requests that though the service by regular mode is awaited
since the respondent no. 1 has already appeared, the matter may be
heard for admission. The learned advocate Mr. Aute for the respondent
no. 1 agrees.
2. Heard both sides.
3. The second appeal is admitted on the following substantial
question :-
Whether the observations and conclusions of the lower
appellate court in refusing to condone the delay in filing the
appeal against the judgment and decree in R.C.S. 12 of
2010 are perverse and arbitrary and ignore the material
facts brought on record by the appellant ?
4. The respondent no. 1 had filed the suit for perpetual
injunction against the appellant and respondent no.2 restraining them
from obstructing his possession over the suit property. The suit was
decreed by judgment and order dated 27-07-2016.
5. According to the appellant, the dispute in question pertains
to a land and was already compromised between the appellant and the
respondent no.1 by way of a compromise decree in R.C.S. no. 25 of
2001. He was, therefore, not conscious about the fresh dispute being
created by the respondent no.1. For this reason he did not even
contest the suit. The learned advocate who was representing him
before the trial court also died in the year 2016. He himself was
suffering from mental illness and was taking treatment of a psychiatrist
3 SA / 160 / 2021
since the year 2016. When respondent no. 1 obstructed his
possession in the year 2019 that he became aware about the decision
of the suit and, thereafter, took steps to challenge the judgment and
decree by preferring the appeal. Since there was delay, application for
its condonation was moved but it was dismissed by the judgment and
order under challenge in this second appeal.
6. (a) The learned advocate Mr. Kale for the appellant, in
consonance with the stand of his client submits that the appellant was
not aware about the decision which has resulted in causing the delay.
There are circumstances sufficient to indicate that he got the
knowledge belatedly without there being any deliberate attempt on his
part. His advocate was dead and even he was suffering from mental
illness about which sufficient material was produced before the lower
appellate court, still, by order under challenge it failed to notice such
evidence and recorded a perverse finding that no medical record was
brought to substantiate the ground of mental illness.
(b) The learned advocate Mr. Kale would further submit that
the appellant had testified to corroborate the grounds being put forth for
condonation of delay. He specifically stated about having acquired the
knowledge when the respondent tried to obstruct his possession in the
year 2019. Soon thereafter he took steps and preferred the appeal.
(c) There was sufficient cause for condoning the delay. The
dispute pertain to the right of immovable property. Lenient view be
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taken and if necessary the respondent no. 1 can be compensated by
imposing costs, to have decision on merits rather than by default.
7. Learned advocate Mr. J. S. Aute for the respondent no. 1
submits that there was no sufficient cause. A false ground was taken of
having acquired the knowledge of the decision belatedly. The appellant
was even not prompt in defending the suit. He did not appear in the
suit initially and, thereafter though appeared through the advocate, did
not turn up on the dates of the hearing. He had filed separate suit i.e.
R.C.S. no. 185 of 2019. A specific observation was recorded in his suit
while passing the order on temporary application as to how he had not
purposely disclosed the decision in R.C.S. no. 12 of 2010. All such
conduct of the appellant clearly indicates that he was bent upon to
harass the respondent no. 1. Causing delay is one more attempt at the
same end. There being no sufficient cause to condone the delay of
1111 days, the lower appellate court was justified in rejecting the
application. The second appeal be dismissed.
8. I have carefully gone through the papers and considered
the rival submissions.
9. True it is that in normal course, while considering requests
for condonation of delay under section 5 of the Limitation Act, 1963, the
courts have to take a pragmatic view, for, a party is not to gain anything
by allowing his right to get extinguished by lapse of time. However,
simultaneously, it is necessary to bear in mind the law of limitation has
its own place in the statute book. There has to be termination of any
5 SA / 160 / 2021
litigation and the parties are expected to possess such legitimate
expectation. If stale and old claims are allowed to be entertained by
condoning the delay, it would certainly shake the belief of an ordinary
litigant that the litigation can terminate after a reasonable time.
10. Bearing in mind the propositions, if one examines the
matter in hand, as it is, there was a delay of 1111 days in challenging
the decree passed by the trial court. Ex facie, the delay is enormous
and was required to be explained by cogent and convincing evidence
to demonstrate that there was some sufficient cause for the appellant
to not to challenge the judgment and decree in time.
11. The appellant did testify about the grounds mentioned
herein-above to substantiate his claim of there being sufficient cause.
However, simultaneously, it needs to be borne in mind that there are
several other circumstances which would clearly indicate that by no
stretch of imagination can it be said that the delay had occasioned
bona fide. Rather, there are circumstances to indicate that the delay
was intentional and deliberate.
12. Admittedly, the parties i.e. the appellant and the
respondent no. 1 were already in a dispute in the form of R.C.S. no. 25
of 2001 and though it was compromised way back in 2001, the dispute
had received a new lease of life in the form of the present suit which
was filed in the year 2010.
6 SA / 160 / 2021
13. During his cross-examination, the appellant specifically
admitted that his family members were not aware about the filing of the
suit still mentions about having appeared in that suit through an
advocate. Though there is material to show that the advocate
representing him had died in the year 2016, there is record to
demonstrate that the respondent no.1 obstructed his possession after
the decision was rendered by the trial court and about which he had
made the complaint to the Police in the month of May - 2017. Even
thereafter, in the year 2019, precisely on 01-06-2019, he had made
complaints to the Police putting up a grievance that the respondent
no. 1 was obstructing his possession. Taking into account the history
of the litigation, any ordinary man in his place would have been prompt
enough to contact the lawyer and keen to get the knowledge as to what
had happened in the suit if it was already pending between the parties
once the respondent no.1 had started obstructing his possession, more
so when he even admitted that his wife has been an advocate
practising in the courts.
14. True it is that there is evidence to show that the appellant
was taking treatment of a psychiatrist, however, there is no evidence to
show that the mental illness was of such serious nature as would have
deprived him of following the ordinary pursuits. If it be so, it was
expected that the appellant should have explained as to what steps
were taken by him after his possession was obstructed by the
respondent no. 1 in spite of the pending litigation in which he had
7 SA / 160 / 2021
already appeared. When he was prompt enough to approach the
Police by filing written complaint on 01-05-2017, his evidence is clearly
insufficient to explain such a delay.
15. Again, assuming for the sake of arguments that he
acquired knowledge about the possession as is being averred by him
on 06-08-2019, still, the appeal was not preferred promptly thereafter.
This circumstance also indicates that even after his possession was
repeatedly obstructed in the first part of the year 2019, he was not
prompt enough to take emergent steps to file the appeal.
16. Though the observations of the lower appellate court to
the extent of absence of medical evidence regarding mental illness of
the appellant are perverse, the other reasoning given by it that there
was no sufficient ground to condone the delay, cannot be said to be
perverse or arbitrary.
17. Hence I answer the question in the negative. The appeal
is dismissed.
18. All pending civil applications stand disposed of.
[ MANGESH S. PATIL ]
JUDGE
arp/
