Bombay High Court
Rajesh Gaurishankar Zadbuke vs Vijaykumar Dagduappa Sawant And ... on 14 October, 2022
Bench: Nitin W. Sambre
(11)-SAST-25745-21.doc.
Digitally
signed by
BALAJI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
CIVIL APPELLATE JURISDICTION
2022.10.17
14:37:13
+0530
SECOND APPEAL (ST) NO.25745 OF 2021
Rajesh Gaurishankar Zadbuke ..Appellant
Versus
Vijaykumar Dagduappa Sawant & Ors. ..Respondents
Mr. Vinod P. Sangvikar, for the Appellant.
CORAM : NITIN W. SAMBRE, J.
DATE : 14th OCTOBER, 2022
P.C.
1. Suit against the present appellant/defendant came to be
decreed on 19th January, 2019 by Civil Judge, Senior Division,
Barshi, whereby directions were issued to the appellant/defendant
to hand over to vacant possession of the suit property to the
plaintiffs within period of two months with direction to pay
compensation of Rs.3240/-.
2. Since the appeal preferred by the appellant was time
barred, the prayer for condonation of delay moved by the appellant
came to be rejected by the First Appellate Court vide order dated
20th October, 2021 passed by the District Judge-2, Barshi. As such,
this Second Appeal.
3. The contentions are, the delay caused is unintentional.
From the Misc. Application No.8 of 2020, it is claimed that sufficient
BGP. 1 of 3
(11)-SAST-25745-21.doc.
cause is demonstrated so as to condone the delay of 329 days in
preferring Regular Civil Appeal. Attention of this Court is invited to
the fact that appellant had every intention to prefer appeal,
however, because of medical ailment of family members, appeal
could not be preferred within time. In addition the contentions are,
the appellant has strong prima-facie case on merits.
4. I have appreciated the aforesaid submissions.
5. The Trial Court decreed the suit against the appellant
holding that the appellant was illegal occupant of the suit premises.
The defence of the appellant was that he was a tenant of the
predecessor-in-title of the plaintiffs Chheda Sisters from whom the
property was purchased by the plaintiffs on 9th November, 2005. It
is claimed that Chheda Sisters have regularly accepted rent but not
issued rent receipts. As such, according to him, existence of
appellant as lawful tenant in the suit property was duly established.
He would further urge that the Court below committed an error in
not condoning the delay as the appellant could have been put to
reasonable condition.
6. The fact remains that after the judgment was delivered
by the Trial Court decreeing the suit on 19 th January, 2019, the
appellant has applied for certified copy on 4th November, 2019. The
appellant was delivered certified copies on 28th November, 2019.
The aforesaid delay of ten months in applying for certified copy was
BGP. 2 of 3
(11)-SAST-25745-21.doc.
sought to be established based on the medical ailment of family
members and financial hardship.
7. Though specifically pleaded in paragraph 2 of the
application for condonation of delay, there is no documentary
evidence or oral so as to substantiate the suit claim. Apart from
above, the claim put forth that because of the Corona pandemic/
lock-down the appeal could not be filed within time stipulated also
is devoid of merit, as the Corona pandemic/lock-down appears to
have been noticed from March, 2020 and not prior to that.
8. As such, there is no sufficient cause established by the
appellant so as to order condonation of delay.
9. Apart from above, even if contention raised by the
appellant as status of the appellant about the lawful tenant is
accepted for the sake of argument, still fact remains that the
appellant has failed to produce any rent receipt on record. Even
after purchase of the suit property by the plaintiffs on 9 th November,
2005 i.e. Exh.73, the appellant is unable to demonstrate that he has
offered rent to the plaintiffs. That being so, there is no question of
law involved in the Second Appeal.
10. The Second Appeal as such stands dismissed.
[NITIN W. SAMBRE, J.]
BGP. 3 of 3
