Bombay High Court
Venkat Sanganna Momale vs Vedant Venkat Momale on 18 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:26776
1 20-SA.74-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
20 SECOND APPEAL NO. 74 OF 2023
WITH
CIVIL APPLICATION NO. 3209 OF 2023
IN SA/74/2023
VENKAT SANGANNA MOMALE AND OTHERS
VERSUS
VEDANT VENKAT MOMALE AND OTHERS
...
Adv. for Appellants : Ms. P. G. Sontakke h/f Mr. Sontakke G. K.
Advocate for Respondent Nos.1 to 3 : Mr. Murkute J. M.
...
CORAM : S. G. MEHARE, J.
DATE : 18.12.2023
PER COURT :-
1. Heard the learned counsel for the appellants/original
defendants and the learned counsel for the respondents/
original plaintiffs.
2. The appellant has two wives and four children. The first
wife along with her daughter and son had filed a suit for
partition. The suit against the present appellants proceeded ex-
parte. Then the appeal was preferred, but it was delayed by
five months and eight days. The First Appellate Court did not
convince that the delay was caused due to negligence of the
lawyer representing them. The Court come to the conclusion
that the grounds for the delay were not convincing and not
2 20-SA.74-23.odt
plausible. Hence, dismissed the application by the impugned
order.
3. Learned counsel for the appellants would submit that it
was a sheer negligence of the lawyer who did not attend the
case sincerely. The Court of first instance has apparently
committed error of law in determining the shares. The
appellant, his second wife and her children were not granted
any share. Though the children were illegitimate for the
purpose of argument they were entitled to the share. The law
is well settled that for the mistakes or wrongs of the others, the
third person should not suffer.
4. Learned counsel for the respondents opposed the
application contending that lawyer is a soft target for seeking
the relief. The appellants were not diligent in contacting the
lawyer. But, he did not oppose the various pronouncements of
the Supreme Court about the lenient view in condonation of
delay.
5. Whether the delay was liable to be condoned, is the
question of law.
3 20-SA.74-23.odt
6. The legal issue whether the illegitimate child is entitled
to the share in the ancestral property has been recently decided
by the Supreme Court in the case of Revanasiddappa and
another Vs. Mallikarjun and others ; (2023) 10 Supreme Court
Cases 1. The substantial question about the rights of the
parties was required to be decided. Not completely disagreeing
with the findings recorded by the learned Ad-hoc District
Judge-1, Udgir, the Court is of the view that considering the
various pronouncement of the Supreme Court, the rights of the
parties to contest the suit on merit should not be affected.
7. Considering the facts of the case legal issues involved in
the case, the Court is of the view that lenient view may be
taken to condone the short delay. It was suit for partition in
which all parties are plaintiffs and defendants. There should
be justice with all. The question of law whether the delay is
liable to be condoned is answered in affirmative. However, the
opponents have been unnecessarily harassed. Hence, it is a fit
case to compensate them by way of costs. Hence, the following
order :
ORDER
(i) The appeal is allowed subject to costs of
Rs.5,000/- (Rupees Five Thousand only) to be
4 20-SA.74-23.odt
paid to the present respondents before the First
Appellate Court.
(ii) The impugned judgment and order of the learned
Ad-hoc District Judge-1, Udgir passed in Civil M.A.
No.43 of 2022, dated 01.02.2023 is set aside.
(iii) Civil M.A. No.43 of 2022 is allowed.
(iv) The Registry of the District Court, Udgir is directed
to register the appeal according to law.
(v) The parties to appear before the First Appellate
Court on 22.01.2024.
(vi) Civil Application stands disposed of.
(S. G. MEHARE, J.)
...
vmk/-
Signed by: Vaishali Mahesh Kale
Designation: PA To Honourable Judge
Date: 19/12/2023 18:52:32
