Vilas Tukaram Chavan vs Suresh Bhanudas Kulkarni And Ors
2023 Latest Caselaw 3882 Bom

2023:BHC-AS:12137
                                                                                913.sa.329.2021.doc


                    Harish
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
                                     SECOND APPEAL NO. 329 OF 2021
                                                 WITH
                                  INTERIM APPLICATION NO. 2053 OF 2019
                                                  IN
                                     SECOND APPEAL NO. 329 OF 2021

                    Vilas Tukaram Chavan                      ...Appellant/Applicant
                             Versus
                    Suresh Bhanudas Kulkarni & Ors.           ...Respondents

                    Mr. Anand S. Shalgaonkar, for the Appellant/Applicant.
                    Mr. Dilip B,. Shinde, for Respondent Nos. 1.

                                               CORAM : MADHAV J. JAMDAR, J.

DATE : 19th April, 2023

P.C.:

1. Heard, Mr. Shalgaonkar, learned counsel appearing for the

Appellant and Mr. Shinde, learned counsel appearing for the

Respondent No. 1.

2. This Court by order dated 3rd February, 2023 framed

following substantial question of law in this Second Appeal :-

"Whether the learned First Appellate Court while rejecting the application for condonation of delay in challenging the Judgment and Decree dated 5 th September, 2011 passed in Regular Civil Suit No. 70 of 2002 has ignored suffcient reasons given by the Appellant for condonation of delay?"

3. The Second Appeal takes exception to the order dated 24 th

913.sa.329.2021.doc

July, 2019 passed by the learned District Judge-8, Sangli in Civil

Miscellaneous Application No. 229 of 2014 by which delay

condonation application fled in appeal challenging the Judgment

and Decree dated 5th September, 2011 in Regular Civil Suit No. 70

of 2002 was dismissed. As a result of the same, the Appeal before

District Judge was dismissed and therefore the Second Appeal.

4. Mr. Shalgaonkar, learned counsel appearing for the

Appellant submitted that, Respondent No. 1 fled Regular Civil

Suit No. 70 of 2002 in the Court of Civil Judge, Junior Division,

Tasgaon for removal of alleged encroachment on certain portion

of the property out of City Survey No. 5 of Tasgaon, Dist- Sangli.

The said Suit was decreed on 5th September, 2011. He submits

that, another suit bearing Regular Civil Suit No. 71 of 2002 was

also fled for removal of encroachment with respect to another

portion of said City Survey No. 5 situated at Tasgaon, Dist- Sangli.

The said Regular Civil Suit No. 71 of 2002 was decreed on 26 th

September, 2011. He submits that, thus, the aforesaid two suits

were decided on 5th September, 2011 and 26th September, 2011

respectively and the advocate was engaged to fle the appeal

before the District Court, Sangli. He submits that, accordingly

Regular Civil Appeal No. 410 of 2011 was fled with respect to the

decree passed in Regular Civil Suit No. 71 of 2002, however,

inadvertently the Appeal was not fled with respect to decree

913.sa.329.2021.doc

passed in Regular Civil Suit No. 70 of 2002.

5. It is mentioned in the delay condonation application that, as

the applicant was having health issues and for that purpose he

was required to take treatment frequently with various doctors

and therefore he could not meet his Advocate to get detail

information about the progress of the matter. It is mentioned in

the application that, as soon as he realized that, the Appeal was

not fled with respect to the Judgment and Decree passed in

Regular Civil Suit No. 70 of 2002, he took steps and fled Appeal

along with delay condonation application bearing Civil

Miscellaneous Application No. 229 of 2014.

6. The Respondent No. 1 has fled reply dated 29 th January,

2015 inter alia stating that, suffcient reasons are not given by the

Appellant in delay condonation application.

7. The Learned District Judge-8, Sangli by the impugned

Judgment and Order dated 26th September, 2019 rejected the said

delay condonation application by observing that, both the suits

were decided in the same month and therefore, the Applicant was

aware about the decisions in both the suits and when he could

meet his advocate in fling Appeal in one matter, he could have

easily taken steps to fle Appeal with respect to the Judgment and

Decree passed in Regular Civil Suit No. 70 of 2002.

913.sa.329.2021.doc

8. It is the contention of Mr. Shalgaonkar that, the said delay

condonation application was dismissed without considering the

suffcient reasons set out in the Interim Application. On the

contrary, it is the contention of Mr. Shinde that, the proper

reasons are given by the learned First Appellate Court while

rejecting the delay condonation application.

9. Perusal of delay condonation application, clearly shows

that, in fact the Appellant was under the impression that two

separate Appeals were fled challenging the Judgments and

Decrees passed in respect of both the suits and as soon as he came

to know that only one appeal was fled, he took steps for fling

another Appeal. Therefore, the reasons given by the learned First

Appellate Court while rejecting the delay condonation application

are contrary to the reasons set out in the Civil Miscellaneous

Application. The learned First Appellate Court has completely

ignored that, the Appellant has taken steps for fling Appeals in

both the suits and he was under the impression that both the

appeals were fled. Therefore, the reasons given in paragraph No.

11 by the learned First Appellate Court are not proper.

10. Mr. Shalgaonkar submitted that, in fact the same advocate

was engaged for fling the Appeals in Regular Civil Suit No. 70 of

2002 as well as Regular Civil Suit No. 71 of 2002. He submitted

that, inadvertently, only one appeal was fled challenging the

913.sa.329.2021.doc

Judgment and Decree in Regular Civil Suit No. 71 of 2002. Mr.

Shalgaonkar relied on the Judgment of a learned Single Judge of

this Court dated 28th February, 2023 passed in Interim

Application No.2047 in 2019 in Suit No. 3350 of 2009 wherein it

has been held that when a party engages an advocate who is

expected to appear at the time of hearing but fails to so appear,

normally, a party should not suffer on account of default or non-

appearance of the advocate.

11. Mr. Shinde has relied on the Judgment of the Supreme

Court in the matter of Ajay Dabra Vs. Pyare Ram & Ors 1. to

contend that, delay in belated appeals can only be condoned,

when suffcient reason is shown before the court for the delay. The

appellant who seeks condonation of delay therefore must explain

the delay of each day. It is true that the courts should not be

pedantic in their approach while condoning the delay, and

explanation of each day's delay should not be taken literally, but

the fact remains that there must be a reasonable explanation for

the delay. In the present case the reasonable explanation has

been set out in the application seeking delay condonation and

therefore, the delay in the present case is required to be condoned

in the interest of justice.

12. Mr. Shinde has also relied on another Judgment of the

1 [2023] 0 Supreme (SC) 78

913.sa.329.2021.doc

Supreme Court reported in the matter of Majji Sannemma @

Sanyasirao Vs. Reddy Sridevi & Ors.2 wherein in the facts and

circumstances of that case Supreme Court found that, in the

application for condonation of delay no explanation much less a

suffcient or a satisfactory explanation had been offered and

therefore the application for delay condonation was dismissed.

However, in the present case as discussed hereinabove,

reasonable and suffcient explanation has been given. Therefore,

there is a substance in the substantial question of law raised in

this Second Appeal.

13. For the above reasons, the Second Appeal deserves to be

allowed by setting aside the Judgment and Decree dated 24 th

September, 2019 passed by the learned District Judge-8, Sangli in

Civil Miscellaneous Application No. 229 of 2014.

14. Resultantly, the Appeal fled before the District Court,

Sangli Challenging the Judgment and Decree dated 5 th September,

2011 passed in Regular Civil Suit No. 71 of 2002 by the learned

Civil Judge, Junior Division, Tasgaon is restored to the fle of

learned District Court, Sangli.

15. Both the parties are directed to appear before the concerned

learned District Judge, Sangli on 19th June 2023 for fxing the

schedule of hearing. The concerned learned District Judge to 2 2022 (2) Mh.L.J.

913.sa.329.2021.doc

decide the said Appeal in accordance with law.

16. As the Appeal is of the year 2014, learned First Appellate

Court is requested to dispose of the same expeditiously. Till the

disposal of the Appeal, execution of the Judgment and Decree

passed in Regular Civil Suit No. 70 of 2002 shall remain stayed.

17. In view of disposal of the Second Appeal, nothing survives

in the Interim Application and the same is also disposed of.

(MADHAV J. JAMDAR, J.)