Bombay High Court
Lalasaheb Mahadev Borade vs Mahadev Krishna Borade And Another on 19 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:27056
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 549 OF 2013
WITH CIVIL APPLICATION NO. 9975 OF 2013 IN SA/549/2013
Lalasaheb Mahadev Borade,
Age 35 years, Occu. Agril.,
R/o. Katgaon, Taluka and District
Ahmednagar .. Appellant
(Original Applicant)
Versus
1. Mahadev Krishna Borade,
Age 62 years, Occu. Agril.,
2. Parvati Mahadev Borade,
Age 57 years, Occu. Household,
Both R/o. Katgaon, Taluka and
District Latur .. Respondents
(Original Respondents)
Mr. Parag V. Barde, Advocate for Appellant
CORAM : S. G. MEHARE, J.
DATE : 19-12-2023
PER COURT :-
1. Heard the learned counsel for the appellant.
2. The brief history of the dispute was that the mother of the
present appellant had fled a suit for partition bearing Regular Civil
Suit No.405 of 1999. In the said suit, a compromise decree was
passed in 2001. However, the mother again fled a Regular Civil
Suit No.448 of 2001, disputing the compromise decree. The
present appellant, who is the son of the respondents, had fled a
consenting written statement. Considering the consenting written
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statement of the defendants, the Court passed the decree in
R.C.S.No.448 of 2001 in 2004.
3. The appellant/applicant had fled an application for
condonation of delay with an appeal impugning the consenting
decree passed in R.C.S.No.448 of 2001. He came with a case that
his father had fraudulently obtained the signatures on some
papers and the consent decree in R.C.S.No.448 of 2001. It was
collusive and fraudulent decree. He was unaware of the said
decree till April 2007. For the frst time, he learned about the
decree in April 2007 when the respondents quarrelled with him,
attempted to dispossess him, and disputed his title. After inquiry,
he came to know about the fraudulent decree. He obtained
certifed copies of the judgment and decree and intended to prefer
an appeal, but various Advocates advised him that no appeal
would lie against the consent decree. Hence, he was prevented
from fling the appeal in limitation. He had occasion to consult the
lawyer. At the time, he learned that in certain circumstances, when
consent for a so-called decree has been challenged as it was a
fraudulent consent decree, the appeal would lie. After such
knowledge, he arranged for the documents and money and
preferred the appeal against the decree passed in R.C.S.No.448 of
2001, dated 06.08.2004.
4. The fling of the appeal was delayed. The First Appellate
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Court was not satisfed with the reasons and causes that
restrained him from preferring the appeal in time. Disbelieving the
reasons for the delay, the First Appellate Court rejected the
application.
5. The learned counsel for the appellant read the impugned
judgment and order of the First Appellate Court and argued that
the First Appellate Court did not pay attention to submissions and
pleadings in the application and, under the surmises, incorrectly
calculated the period of limitation. However, fortunately, he
agreed that the delay was six years, two months and twenty-four
days in preferring the appeal. He submits that a liberal view ought
to have been taken while considering the application for
condonation of delay. He also relied on the case of Collector,
Land Acquisition, Anantnag and another, Appellants Vs.
Mst. Katiji and others, Respondents, reported in A.I.R.
1987 S.C. 1353.
6. Lastly, learned counsel for the appellant argued that the
reasons for rejecting the application were perverse and not in tune
with the pronouncements of the Hon'ble Supreme Court and the
High Courts. He submits that there was sufcient cause for not
preferring the appeal in time. He fairly conceded that there were
fndings of the First Appellate Court about acting upon the consent
decree passed in R.C.S.No.448 of 2001 by the applicant.
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7. It is correct that where the substantial rights of the parties
have been afected in any litigation, the Court should take a
lenient view in condoning the delay. The foremost essential
requirement for seeking relief from the Court is the fairness of the
parties to the suit. In this case, the appellant came up with a
specifc case that his father played fraud with him and obtained a
consent decree. He did not deny that the decree was passed long
back in 2004, and he applied for condoning the delay in 2010. He
came up with a case for the frst time in April 2007, when he
learned about the consent decree. However, this way or otherwise,
the First Appellate Court fnds that the applicant had suppressed
the material facts from the Court that he acted upon the decree
impugned in the appeal and had knowledge about it.
8. Considering the facts, the Court is of the view that the First
Appellate Court has rightly held that the applicant has suppressed
the material facts and he had knowledge about the impugned
judgment and decree. Suppressing material facts from the Court is
good grounds for refusing the relief. The applicant has not come
before the Court with clean hands. His intention appears to be not
good, and he is not fair. Under the circumstances, the First
Appellate Court has correctly observed that no discretion can be
exercised in favour of the applicant in taking a liberal view to
condone the delay.
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9. After having gone through the dispute, the reasons for
condoning delay, and the reasons assigned by the learned First
Appellate Court, the Court believes that no substantial question of
law was involved in this case. Hence, the appeal stands dismissed
at the admission stage.
10. Pending civil application stands disposed of.
( S. G. MEHARE )
JUDGE
rrd
