Bombay High Court
Sitaram Ragho Dhonge vs Durgadas Vithoba Thakare And 2 ... on 17 October, 2023
Bench: Avinash G. Gharote
1 22.WP.6341-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6341 OF 2019
( Sitaram Ragho Dhonge
Vs.
Durgadas Vithoba Thakare Through LRs )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Ms. Punam Pisurde, h/f Mr. S.V. Sirpurkar, Advocate for petitioner
Mrs. Kirti Deshpande, Advocate for Respondent No.1
CORAM: AVINASH G. GHAROTE, J.
DATED : 17th OCTOBER, 2023
Heard Ms. Pisurde, learned counsel h/f Mr.
Sirpurkar, learned counsel for the petitioner and Ms.
Deshpande, learned counsel for the respondent No.1.
2. The petition challenges the judgment dated
15/9/2017, passed by the Jt. Civil Judge, Junior Division,
Bramhapuri, dismissing the application under Order 9
Rule 13 the Code of Civil Procedure for setting aside the
ex-parte judgment and decree dated 30/4/2016 passed in
Regular Civil Suit No. 22/2015 and the judgment in
appeal dated 08/08/2019 (page 45) in Misc. Civil Appeal
No. 72/2017, confirming the same by the District Judge-
3, Chandrapur.
3. Ms. Pisurde, learned counsel for the petitioner
submits, that in a suit for partition and separate
2 22.WP.6341-2019.odt
possession filed by the respondents i.e. RCS No. 22/2015
though the petitioner was served, on account of non filing
of the written statement, they were proceeded without
written statement on 04/09/2015. On 13/04/2016 the
evidence of the plaintiff was closed and an ex-parte
decree came to be passed no 30/4/2016. The same was
put to execution and upon receipt of the notice in
execution proceedings on 20/6/2016, certified copy was
applied for and MJC No. 16/2016 under Order 9 Rule 13
for setting aside the ex-parte decree was filed on
02/07/2016. It is contended, that the ailment of the
petitioner was the ground which was taken, for which the
medical certificate at Exh. 19 was filed in support of it.
This has been disbelieved by the learned Courts below on
the ground that it does not indicate that the petitioner
was so disabled as to be bed ridden.
4. It is contended, that the time period between
the ex-parte decree which was passed on 30/4/2016 and
the application for setting aside the same which was field
on 02/7/2016 is hardly a period of two months,
considering which quantum, the Courts below ought to
have exercised their discretion in favour of the petitioner.
5. Mrs. Deshpande, learned counsel for the
respondents, vehemently opposes the contention and
while supporting the impugned judgments submits that
no sufficient cause has been shown by the petitioner and
3 22.WP.6341-2019.odt
the Courts below have rightly not placed reliance on
medical certificate at Exh. 19. She further contends, that
substantial period of time has been lost on account of the
failure of the petitioner to be conscious of his rights for
which the respondents cannot be made to suffer.
6. The medical certificate at Exh. 19 (page 42) of
the Pursis stamp No.4/2023 indicates that the petitioner
was suffering from Cervical Spondylosis and
radiculopathy with anemia, which is the reason which is
cited for the delay in filing the application under Order 9
Rule 13 of CPC. An application for restoration under
Order 9 Rule 13 CPC in terms of Article 123 of the
Limitation Act has to be filed within a period of 30 days.
If that is taken into consideration the delay which has
actually occasioned would be reduced to 30 days and
odd, which by any standards cannot be considered as
delay sufficient enough to deprive the petitioner from
defending the suit. This position has clearly been ignored
by the Courts below while considering the application for
condonation of delay. In view of what has been held in
Esha Bhattacharjee Vs. Managing Committee of
Raghunathpur Nafar Academy and others (2013) 12 SCC
649, the approach of the Court regarding condonation of
delay has to be liberal and in a pragmatic manner,
considering which, the impugned judgments cannot be
sustained and are hereby quashed and set aside and the
application for condonation of delay in filing application
4 22.WP.6341-2019.odt
Order 9 Rule 13 CPC is hereby allowed, by condoning the
delay, however, subject to the costs of Rs.5000/- (Rs. Five
Thousand) to be paid by the petitioner to the respondents
as a condition precedent. The petition is allowed in the
above terms. No costs.
7. The parties shall appear before the Court of
Civil Judge, Junior Division, Bramhapuri on 30th October,
2023 and no further notice of the same shall be required.
The learned Court shall decide the application as
expeditiously as possible.
(AVINASH G. GHAROTE, J.)
SD. Bhimte / MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 18/10/2023 16:38:43
