Bombay High Court
Harish S/O Pandhari Raut And ... vs Vithoba S/O Motiram Raut And ... on 16 October, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:15186
1 19-7518-2017-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7518 OF 2017
PETITIONERS : 1 Harish s/o Pandhari Raut
Aged about 42 years,
Occupation Agriculturist
2 Sanjay s/o Pandhari Raut
Aged about 38 years,
Occupation : Agriculturist
Both R/o Rasulabad, Tah. Arvi,
District Wardha
VERSUS
RESPONDENTS : 1 Vithoba s/o Motiram Raut,
Aged about 70 years,
Occupation : Labour
R/o Rasulabad, Tah. Arvi,
District Wardha
2 Laxman s/o Motiram Raut
Aged Major, Occupation Labour
R/o Rasulabad, Tah. Arvi,
District Wardha
3. Pandhari s/o Motiram Raut, (Dead)
3.a Chhaya Pandhari Raut alias @ Chayya
Vinodrao Nehare,
Aged about 37 years,
Occupation Housewife
R/o At Post Deogaon, District Yavatmal
4 Satish s/o Subhashchandra Jaiswal,
Aged about 45 years,
Occupation : Agriculturist
R/o Krushna Nagar, Ward No. 13,
Wardha, Tah. & Dist. Wardha
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Mr. Sagdeo, h/f Mr. M.M. Agnihotri, Advocate for the
Petitioners
Mr. R.S. Kurekar, Advocate for Respondent Nos.1 and 2
Ms. Anjali Ajay Agrawal, Advocate for Respondent No.3-a
Mr. S.K. Bhoyar, Advocate for Respondent No.4
CORAM: AVINASH G. GHAROTE , J.
DATED : 16th OCTOBER, 2023
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard
finally with the consent of learned counsel for the
parties.
2. The petition challenges the order below
Exh.1 dated 01/11/2017, passed by the learned trial
Court in M.J.C. No.31/2017, whereby the delay of 622
days in filing application for setting aside the ex-parte
decree passed in Regular Civil Suit No.50/2010, dated
28/7/2015 has been rejected on the ground that
sufficient cause is not shown. In Esha Bhattacharjee Vs.
Managing Committee of Raghunathpur Nafar Academy
and others (2013) 12 SCC 649, the Hon'ble Apex Court
has held that a liberal and pragmatic approach ought
to be adopted while considering an application for
condonation of delay, which would not cancell the
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rights available to the parties either prosecution of a lis
or its defence. It is not in dispute that the petitioners
had appeared in R.C.S. No. 50/2010, and in fact, had
also filed the written statement by engaging the
counsel, after which it is contended that the counsel
did not communicate the progress, the change of
counsel having the same effect. The delay of 622 days
is not of such a magnitude that any defence, which
may have been available to the petitioners would not
permitted to have been adjudicated at all. Inspite of
considering Esha Bhattacharjee Vs. Managing
Committee of Raghunathpur Nafar Academy (supra),
the learned Court appears to have taken very technical
view of the matter, which considering circumstances
was uncalled for. Mr. Sagdeo, learned counsel for the
petitioners, has also upon instructions made a
statement that any inconvenience which may have
been caused to other side which may be compensated
by giving appropriate costs, considering which, in order
to afford an opportunity to the petitioners to contest
the matter on merits and in view of the quantum of
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delay, which is 622 days, the impugned order dated
01/11/2017 is quashed and set aside and the
application is allowed subject to costs of Rs.5000/- (Rs.
Five Thousand) is a condition precedent payable to the
respondent No.1.
3. The parties shall appear before the learned
Jt. Civl Judge, Junior Division, Pulgaon on 30th
October, 2023 in RCS No.50/2010 and the learned
Court shall proceed to decide the matter as
expeditiously as possible. The petition is accordingly
allowed in the above terms.
Rule is made absolute in the above terms.
(AVINASH G. GHAROTE, J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 16/10/2023 17:40:23
