Murari S/O Rushi Dongare vs Shalikram S/O Mahagu Raut
2022 Latest Caselaw 9780 Bom

                             1               19.SA.220-2021 JUDGMENT.odt




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH : NAGPUR


                SECOND APPEAL NO. 220 OF 2021


     Murari S/o Rushi Dongare,
     Aged about 73 years, Occ: Cultivator,
     R/o. Sendurwafa,
     Tahsil : Sakoli, District Bhandara.           APPELLANT

       Versus

     Shalikram S/o Mahagu Raut,
     Aged about 67 years, Occ: Cultivator,
     R/o: Talao ward, Sakoli,
     Tahsil: Sakoli, District Bhandara.          RESPONDENT

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Mr. O.W. Gupta, Advocate for the Appellant.
Mr. D.M. Surjuse, Advocate for the Respondent.
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                   CORAM : AVINASH G. GHAROTE, J.

                   DATED    : 26th SEPTEMBER, 2022.

ORAL JUDGMENT :-

Heard Mr. Gupta, learned counsel for the appellant

and Mr. Surjuse, learned counsel for the respondent.

2. The Second Appeal challenges the order dated 2 19.SA.220-2021 JUDGMENT.odt

02.07.2021, passed on the application for condonation of delay

of 324 days, which has been dismissed by the learned Appellate

Court.

3. The learned Trial Court, by judgment and decree

dated 18.03.2019 in R.C.S. No. 09/2018 granted recovery of

possession of land. The appeal challenging the same was

preferred on 17.06.2020 alongwith the application for

condonation of delay. The learned Appellate Court, by the

impugned order, has rejected the application for condonation of

delay on the ground, that the explanation given by the appellant

is not satisfactory.

4. The following substantial question of law arises:

"Whether the learned Appellate Court was justified

in law in rejecting the application for condonation of delay ?"

5. ADMIT on the above substantial question of law.

The Second Appeal is taken up for final disposal by consent of

learned counsels appearing for the respective parties.

3 19.SA.220-2021 JUDGMENT.odt

6. The judgment and decree by the learned Trial Court

was dated 18.03.2019. Before the learned Trial Court, though

the appellant/defendant appeared but had been proceeded

without written statement, and therefore, it is contended, that

the appellant was not aware of the judgment and decree dated

18.03.2019 and came to know about it only on 30.09.2019

when notice was received in Execution No. 18/2019, after

which the matter was referred to mediation, which failed. On

13.11.2019, the appellant had appeared in Execution

proceedings. Before that, on 11.12.2019, he had applied for the

certified copy, which was received on 18.12.2019. Objection

was filed before the Executing Court on 20.04.2020 and the

matter was fixed for hearing on the objection when the Courts

were closed down due to Covid-19 pandemic. The appeal has

been filed on 17.06.2020 with the application for condonation

of delay resulting in delaying of 324 days.

7. The learned Appellate Court, while passing the

impugned order, has recorded the reasons for rejecting the

application, as to why the appellant failed to explain the delay

to apply for the certified copy from 30.09.2019 to 11.12.2019 4 19.SA.220-2021 JUDGMENT.odt

and so also the delay from 18.12.2019 when received the

certified copy till 15.03.2020.

8. In Esha Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 in

para 21 and 22, the Hon'ble Apex Court has laid down the

parameters for considering the application for condonation of

delay and has held that a liberal and non pedantic approach

needs to be adopted, considering which and applying those

principles and the requirement of deciding a lis on merits

instead of in default and the explanation given by the appellant,

it was not permissible for the learned Appellate Court, to have

adopted a narrow and pedantic approach while considering the

application for delay, as is apparent from the impugned order, in

view of which, the same is hereby quashed and set aside and the

application for condonation of delay is allowed, however at the

cost of Rs. 25,000/- (Rs. Twenty Five Thousand Only), to be

deposited with the High Court Legal Aid Services Sub

Committee, Nagpur, as a condition precedent, by 03.10.2022. In

case, the same is done, the parties shall appear before the first

Appellate Court on 10.10.2022.

5 19.SA.220-2021 JUDGMENT.odt

9. The Second Appeal is allowed in the above terms.

10. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.) S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:28.09.2022 14:17