Baban Genu Dhorake (Since ... vs Maruti Balkrishna Yede And Ors
2022 Latest Caselaw 11377 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION
          INTERIM APPLICATION NO. 18626 OF 2022
                               IN
             SECOND APPEAL NO. 1041 OF 2004
                             WITH
          INTERIM APPLICATION NO. 18630 OF 2022
                               IN
             SECOND APPEAL NO. 1042 OF 2004


Baban Genu Dhorake,
since deceased through legal
representatives,
1/1. Thakaram Baban Dhorake & Ors.        .....Applicants
  V/s.
1. Maruti Balkrishna Yede & Ors.          ....Respondents


                           -----
Mr. Onkar Gawade i/by. Mr. Jaydeep Deo, Advocate for the
respondents no.1 and 2.
                     CORAM : SANDEEP K. SHINDE, J.

THURSDAY, 10TH NOVEMBER, 2022.

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P.C. :

1. A praceipe is moved for speaking to minutes of the order dated 4 Oct, 2022.

th

2. Following corrections are sought : (I) In para-3, 9 line, the date "17 April, 2014" be replaced th th

with "23rd June, 2003".

(ii) Same para, 12 line, the date "17 April, 2004" be replaced th th

with "15 April, 2004".

th

3. Appropriate corrections be carried out and the order be read accordingly.

(SANDEEP K. SHINDE, J.) Rane 3/7 IA-18626-2022-STM

N THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO.18626 OF 2022 IN SECOND APPEAL NO.1041 OF 2004 WITH INTERIM APPLICATION NO.18630 OF 2022 IN SECOND APPEAL NO.1042 OF 2004

Baban Genu Dhorake Since deceased through legal representatives 1/1. Thakaram Baban Dhorake and Ors. ....Applicants Vs.

1. Maruti Balkrishna Yede and Ors. ....Respondents

.....

Mr. K.S.Dewal for the Applicants/Appellants. Mr. Jaydeep Deo for the Respondent Nos.1 and 2.

CORAM: SANDEEP K. SHINDE, J.

RESERVED ON : JULY 29, 2022 PRONOUNCED ON: OCTOBER 4, 2022 P.C.

1. These two applications seek to recall and set aside

order of abatement and restore the Second Appeals to the fle

by condoning the delay of 16 years and 121 days.

2. Heard learned counsel for the Parties.

3. Facts:

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Shri Baban Genu Dhorake, father of the applicants

was sole appellant in two Second Appeals. He passed away on

25th November, 2005. Applicants are his heirs. Appellant, was

defendant in the Special Civil Suit No.921 of 1997, instituted by

the respondents for possession and mesne profts. Applicants'

case is that, respondents had fled suit, only to create

impediment in the Regular Civil Suit No.20 of 1997 fled by their

father Baban Genu Dhokare for declaration and perpetual

injunction. Trial Court by common judgment, dated 23rd June,

2003, decreed suit fled by applicant father and dismissed suit

of the respondents. However, Appellate Court reversed the

decrees, drawn, in both the suits by judgments dated 15th

April, 2004. Thus, these Second Appeals were fled by Baban

Dhokare, father of applicants. Second Appeals were admitted on

7th October, 2004 and execution of the decrees was stayed.

4. Pending appeals, sole appellant passed away on 25 th

September, 2005.

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5. It is applicants' case that in the month of September,

2022, they had received summons dated 18 th August, 2022 in

Regular Darkhast No.20 of 2004, by which they were called

upon to remain present before the executing Court on 30 th

September, 2022. Whereafter they went to meet their local

lawyer, but were informed that lawyer had expired on 23 rd April,

2021. Their case is, they were unaware of the Second Appeals

and the proceedings therein and only after establishing contact

with the advocate, who was representing the appellant, they

moved present applications. It is their contention that delay on

their part was neither deliberate nor intentional and, therefore,

in the interest of justice, delay may be condoned and appeals

be restored to the fle.

6. It appears, respondents circulated Second Appeals on

9th April, 2021, with due intimation to the counsel appearing for

the appellant. However, on 9th April, 2021, none appeared for

the appellant. It appears, counsel appearing for the respondents

apprised the Court that pending appeal, sole appellant has

expired. Whereafter, hearing was stand over to 20 th April, 2021.

Thereafter, respondents by e-mail dated 15 th April, 2021

intimated appellants advocate of matter being adjourned to 20 th Rane 6/7 IA-18626-2022-STM

April, 2021. However, no steps were taken to bring legal

representatives on record. Thereafter, once again advocate for

respondents informed the appellants' advocate vide e-mail

dated 16th March, 2022 stating sole appellant has expired on

25th November, 2005 and matter is circulated for 17 th March,

2022. However, since no steps were taken to bring legal

representatives on record, this Court vide order dated 17 th

March, 2022 dismissed the Second Appeals as abated.

Thereafter, on 26th March, 2022, advocate for the appellant

addressed a letter to Mr. Baban Genu Dhorake (Appellant) to

contact him for instructions. The postal envelope returned

unclaimed reporting 'Addressee was dead'. Therefore, it could

be seen that for want of instructions and particulars of legal

representatives, advocate for the appellant could not take steps

to restore the appeal. However, in the meanwhile, may be in or

around August, 2022, executing Court, issued possession

warrant, whereafter, applicants contacted their advocate and

fled these applications on 20th September, 2022.

7. The delay of 16 years and 121 days is inordinate and

has not been explained by the applicants at all. All the Rane 7/7 IA-18626-2022-STM

applicants are senior citizens and it is very unlikely that they

were unaware of the appeals instituted by Baban Genu

Dhokare. Suit in this case was instituted in the year 1997 and

the decree for possession was passed by the Appellate Court in

2004.

8 In consideration of facts of the case and for want of

explanation by the applicants for not taking timely steps, in my

view, applications moved after 16 years to set aside the order of

abatement calls for no interference. Applications are, therefore,

dismissed.

(SANDEEP K. SHINDE J.)

Note : Corrections are carried out in para-3 (bold portion) of the order only th pursuant to speaking to minutes order dated 4 October, 2022. NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2022.11.10 15:22:33 +0530