Bombay High Court
Shripat Bhaurao Ingale vs Baijabai Bhaurao Ingale (Dead) 2. ... on 1 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:25174
1 903-AO.36-21, oral jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.36 OF 2021
Shripat Bhaurao Ingale,
Age 79 years, Occu. Agri.,
R/o Ghulewadi, Tal. Sangamner,
District Ahmednagar. ... Appellant.
Versus
1. Baijabai Bhaurao Ingale (Dead),
2. Mahipat Bhaurao Ingale,
Age 73 years,
3. Milind Shripat Ingale,
Age 46 years,
4. Motilal Bhaurao Ingale (Dead),
5. Vijay Motilal Ingale,
Age 51 years,
6. Raju Motilal Ingale,
Age 47 years,
7. Sunil Motilal Ingale,
Age 45 years,
Occupation of all Res. - Agriculture,
All R/o Jorve, Tal. Sangamner,
District Ahmednagar.
8. Savitribai Shankar Lonari,
Age 89 years, Occu. Agriculture,
R/o Brahmangaon, Tal. Kopargaon,
Dist. Ahmednagar.
9. Harnabai @ Laxmibai Haribhau Milkhe,
Dead through L.Rs.
2 903-AO.36-21, oral jud.odt
9A Bhausaheb Haribhau Milkhe,
Age 43 years, Occu. Agriculture,
R/o Milkhe Wasti, At & PO Chichondi Shiral,
Tal. Pathardi, Dist. Ahmednagar.
10. Parvatabai Jagannath Aadhav,
Age 70 years, Occu. Agriculture,
R/o Lauki Shirasgaon,
Tal. Yewala, Dist. Nashik. ... Respondents.
...
Advocate for Appellant : Mr. Bhide Vinod Y.
Advocate for Respondent No.2, 9A : Mr. Ankush N. Nagargoje.
...
CORAM : S. G. MEHARE, J.
DATE : 01.12.2023
ORAL JUDGMENT :-
1. Heard the learned counsel for the appellant and learned
counsel for the contesting respondent Nos.2 and 9A. Rest of
the respondents were served, but they did not appear.
2. Admit.
3. Following substantial question of law is formulated ;
(a) Whether the impugned judgment and order
affects the rights of the appellant ?
4. Regular Civil Appeal No.26 of 2003 was listed for final
hearing from 11.09.2013. However, neither the appellant nor
respondents shown the interest in getting the appeal and cross
3 903-AO.36-21, oral jud.odt
objection decided. The Court has granted a last chance to the
learned counsel appearing for the appellant. However, on the
next date, again the adjournment was sought. The First
Appellate Court was not satisfied with the reasons mentioned
in the application. The learned District Judge-1 referring to the
earlier order of rejection of the application for adjournment,
considered the application for re-admission of the appeal. The
Court observed the conduct of the appellant's counsel. He also
observed that Order XVII Rule 1 of the Civil Procedure Code
provides that no adjournment more than three could be
granted during the hearing. Learned First Appellant Court did
not satisfy with the reasons assigned for re-admission and
rejected the application.
5. Learned counsel for the appellant would submit that the
reasons assigned for re-admitting the appeal were genuine and
probable. No deliberate adjournments were sought. Only for
two occasions, the adjournment was sought. The mandate of
Order XVII Rule 1 could have been applied. Learned counsel
for the appellant would submit that the substantial issue of the
rights and title of the appellant was involved in the case. He
was the exclusive owner of the properties partitioned. Hence,
by taking a liberal approach, an opportunity may be granted.
4 903-AO.36-21, oral jud.odt
The decree is still not executed. He prayed to allow the
appeal.
6. Per contra, the learned counsel for the contesting
respondents would submit that the Court erred in not keeping
the cross objection alive. He supported the impugned judgment
and order of the First Appellate Court.
7. Perused the impugned judgment and order. The reasons
were that the paper book could not be prepared due to Diwali
Vacation. Certain relevant documents were not available with
the appellant. Hence, he could not produce it along with
affidavit. On the date fixed for the argument, the appellant
could not attend the Court, as he was busy in his agricultural
activities and he fell sick.
8. The First Appellate Court is correct that the presence of
the appellant in appeal is not essential. However, possibility of
not getting the paper book due to Diwali Vacation and non
submission of documents cannot be ruled out. This Court is
not oblivious about the practice of seeking adjournment at the
Trial Court, but the interest of the litigant is to be protected
and they shall not suffer for the mistakes of the lawyers
appointed by them. So, in the interest of justice, the appeal
from order deserves to be allowed. Therefore, the substantial
5 903-AO.36-21, oral jud.odt
question of law is answered in affirmative. Hence, the
following order :
ORDER
(i) The Appeal is allowed.
(ii) The impugned judgment and order of District
Judge-1, Sangamner passed in Misc. Civil
Application No.56 of 2014, dated 16.01.2021 is
set aside.
(iii) Regular Civil Appeal No.26 of 2003 along with
cross objection is re-admitted to its original
number.
(iv) The parties are directed to appear before the First
Appellate Court on 02.01.2024 and argue the
matter without fail. Their rights to file other
application except adjournment are not taken
away. If again, the matter is tried to be protracted,
the impugned order passed in Misc. Civil
Application No.56 of 2014, dated 16.01.2021 and
cross-objection would be restored automatically.
(v) The appellant do pay the costs of Rs.5,000/- to the
contesting respondents before the First Appellate
Court.
(S. G. MEHARE, J.)
...
vmk/-
Signed by: Vaishali Mahesh Kale
Designation: PA To Honourable Judge
Date: 04/12/2023 11:00:29
