Ratan Ramchandra Kharat ... vs Dattatraya Shankar Jamdade
2023 Latest Caselaw 995 Bom

                                                3 CAs 5.22 in SAst 36478.18.doc


Dusane

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CIVIL APPELLATE JURISDICTION

             CIVIL APPLICATION NO.5 OF 2022
                           IN
          SECOND APPEAL (St.) NO.36478 OF 2018



Ratna Ramchandra Kharat                       ...Applicants
(since deceased) through her
legal heirs
Shri. Mahendra Ramchandra Kharat
& Ors.

        V/s.
Dattatraya Shankar Jamdade & Ors. ...Respondents


Mr. T.J. Kapre i/by J.S. Kapre for Applicants.
Mr. P.B. Gole for Respondents.



                        CORAM: MADHAV J. JAMDAR, J.

DATE: 31st JANUARY, 2023

P.C.:

1. Heard Mr. Kapre, the learned Advocate appearing for the

Applicants and Mr. Gole, the learned Advocate appearing for the

Respondents.

2. At the outset, Mr. Kapre, learned Advocate appearing for

the Applicants seeks leave to amend. Leave granted.

Amendment be carried out forthwith.

3 CAs 5.22 in SAst 36478.18.doc

3. By the present Second Appeal, which has been filed on 5 th

December, 2018, the judgment and decree dated 5th April, 2014

passed in Regular Civil Appeal No. 52 of 2009 by learned

Principal District Judge, Satara is challenged. The Civil

Application is taken out seeking condonation of delay of about 4

years 167 days in filing the Second Appeal.

4. It is mentioned in the application that Applicant No.5 is the

only earning member of the family. Applicant Nos. 2 to 4 and 6

are married sisters and they are staying at their matrimonial

homes. Applicant no.1 is insane and psychologically unfit and

Applicant No. 7 has never taken any active steps due to lack of

knowledge. Applicant No. 5 who has been looking after the

matter fell sick severely in the year 2014 due to 'Left lower limb

venous Doppler' and as a result of which he was not able to

move his heavily swollen leg and was bedridden continuously.

He was hospitalised from 22nd October 2014 to 27th October

2014. The medical certificate dated 31st October 2018 issued

by Willis F. Pierce Memorial Hospital, Wai, District Satara states

that Applicant No. 5 has been attending OPD regularly since

22nd October 2014 till 31st October 2018. In the application, it

has been stated that huge amount was spent for treatment of

Applicant No.5. There are various other grounds mentioned in

the application.

3 CAs 5.22 in SAst 36478.18.doc

5. In the Affidavit-in-Reply the main contention raised is that

the Applicant No. 5 was in the hospital from 22nd October 2014

till 27th October 2014 and therefore it is the contention of the

learned Advocate appearing for the Respondents that the delay

is not properly explained. However, it is to be seen that the

Medical Certificate dated 31st October 2014 specifically

mentions that the Applicant No. 5 is taking regular treatment

from 22nd October 2014 till 31st October 2018 and he is

suffering from severe 'Left Lower Limb Venous Doppler' and thus

due to swelling of legs he was bedridden continuously.

6. Mr. Gole, learned Advocate appearing for the Respondents

has relied on the judgment of this Court in the case of Vithal

Dhondiba Chawan (Died) through LRs and Ors. Vs.

Madhavrao alias Mahadeo Tukaram Chavan and Ors.1, to

substantiate his case. He states that even if one of the

Applicants is suffering from some disability to file appeal, it has

to be shown that the remaining Applicants also could not take

steps. However in the Application the difficulties faced by other

Applicants are also set out.

7. Mr. Gole, has also relied on the judgment of the Hon'ble

Supreme Court in P.K. Ramachandran Vs. State of Kerala

and Anr.2. In that case, the Hon'ble Supreme Court has found 1 (2009) 5 Bom CR 29 2 (1997) 7 S.C.C. 556

3 CAs 5.22 in SAst 36478.18.doc

that the explanation given is not satisfactory and reply of the

Respondent has not been taken into consideration by the High

Court. However, in the present case, perusal of the application

shows that sufficient reasons are given by the Applicants. In the

affidavit-in-reply nothing has been brought on record to indicate

that the reasons given in the application are not genuine and not

sufficient. Hence, although there is considerable delay in filing

the appeal, the delay has been adequately explained. The

Applicants were prevented from filing the appeal for the reasons

which are set out in the Application and some of which are set

out herein.

8. In the facts and circumstances of this case, the Civil

Application is allowed in terms of prayer clause (a) on the

condition that the Appellants pay to the Respondents an amount

of Rs.5,000/- towards costs. The cheque of Rs.5,000/- be issued

by the Appellants in favour of Respondent No.1-Dattatray

Shankar Jamdade, which will be the payment for all the

Respondents. Costs be paid within a period of four weeks from

today.

9. The Civil Application is allowed in above terms.

BHALCHANDRA GOPAL DUSANE (MADHAV J. JAMDAR, J.) Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2023.02.02 17:39:58 +0530