Bombay High Court
Vijaykumar Maruti Suryawanshi vs Sau. Anusayabai Dattu Umatwade ... on 7 March, 2022
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
30 SECOND APPEAL NO.64 OF 2019
Vijaykumar Maruti Suryawanshi .. Appellant
Versus
Sau. Anusayabai Dattu Umatwade and Ors .. Respondents
...
Advocate for Appellant : Mrs. M.D. Thube - Mhase
Advocate for Respondent Nos.1 and 2 : Mr. V.M. Vibhute
...
WITH
CA/13808/2018 IN CA/11954/2017
WITH
CA/11954/2017 IN SA/64/2019
....
CORAM : MANGESH S. PATIL, J.
DATE : 07-03-2022
PER COURT :
. This is a Second Appeal by the defendant preferred
against the rejection of the application by the lower appellate court
for condonation of delay filed under Section 5 of the Limitation Act,
1963 in preferring the appeal against the judgment and decree
passed by the trial court on 04-06-2007. The delay is stated to be of
3031 days.
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2. Learned advocate Mrs. M.D. Thube - Mhase for the
appellant submits that the appellant / applicant is the purchaser who
had purchased a portion of the suit property from one of the three
sharers, decree for partition amongst whom has been passed by the
trial court. Though he was a party, the summons was not properly
served on him. It was served to his brother, who then joined hands
with the respondents - plaintiffs and managed to secure the decree.
He got the knowledge about passing of the decree when decree was
put to execution and measurement through the office of Tahsildar
was to be undertaken on 18-10-2015. She, therefore, prays to
condone the delay.
3. Learned advocate for respondent nos.1 and 2 - original
plaintiffs submits that very stand of the appellant is not sustainable
on facts. Though he is now disputing service of summons, the
ground which now he has raised was not raised by him when he had
applied for setting aside the selfsame decree under Order-IX,
Rule-13 of the Code of Civil Procedure (in short, 'C.P.C.') by filing
Misc. Application No.55 of 2007. He would submit that the stand
being taken by the appellant before this Court now is completely
different and new than the ground which he had raised in that
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application for setting aside the decree passed ex parte with a request
for condoning the delay.
4. The ground of absence of proper service was never
raised in that proceeding. He would further point out that the very
fact of filing of such application was not at all disclosed by the
appellant before the lower appellate court in his application for
condonation of delay, apart from showing that this falsifies his stand
of having acquired knowledge about passing of the decree in the year
2015. He would submit that since the appellant was seeking a
discretionary relief, he was expected to play all the cards in his
possession bona fide. He having not done so, there being no sufficient
and cogent reason explaining the delay, no exception can be taken to
the judgment passed by the lower appellate court refusing to condone
the enormous delay.
5. Learned advocate for respondent nos.1 and 2 - plaintiffs
further tenders across the bar a copy of the judgment and order
passed by the trial court in Misc. Application No.55 of 2007 dated
23-02-2011.
6. Having heard both the sides and having considered all
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the aforementioned facts and circumstances, it is quite clear that the
decree was passed ex parte qua the appellant in the year 2007.
He initially made an attempt to seek its setting aside under Order-IX,
Rule-13 of the C.P.C. by filing Misc. Application No.55 of 2007 with a
prayer to condone the delay.
7. After extending a fair opportunity to him, by the order
dated 23-02-2011, his application for condnation of delay for setting
aside the decree that was passed ex parte was rejected.
8. This circumstance clearly indicates that at least since
2007 when he had moved this application, the appellant was aware
about passing of the decree.
9. Again, from falsity in the appellant's stand about having
acquired knowledge of the judgment by the trial court in the year
2015, there is another reason to doubt his bona fides rather those
would demonstrate his conduct being mala fide one.
10. If he had preferred an application seeking to set aside
the decree passed ex parte, it was expected of him to have made such
a disclosure while seeking condonation of the delay in preferring the
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appeal before the lower court, challenging the selfsame decree. The
application that was filed by him clearly demonstrates that he
conveniently omitted to state that. If such is the state-of-affairs, no
substantial question of law arises for the determination of this Court.
The Second Appeal is dismissed.
11. In view of disposal of the Second Appeal, nothing
survives for consideration in the pending Civil Application Nos.13808
of 2018 and 11954 of 2017 and the same stand disposed of.
( MANGESH S. PATIL )
JUDGE
...
Gajanan
