Bombay High Court
Bapu Laxman Sonwane vs Ajinath Laxman Sonwane And Anr on 2 February, 2024
-1-
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
907 SECOND APPEAL NO. 525 OF 2023
Bapu Laxman Sonwane ....Appellant
VERSUS
Ajinath Laxman Sonwane & another .....Respondents
.....
Mr. S. Y. Mahajan, Advocate for Appellant
Mr. D. R. Bhadekar, Advocate for respondents.
CORAM : R. M. JOSHI, J.
DATE : 2nd FEBRUARY, 2024.
PER COURT :
1. This appeal under Section 100 of the Code of Civil
Procedure takes exception to the order dated 25 th July, 2023, passed
in Misc. Civil Application No. 19/2023 rejecting the application for
condonation of delay in filing first appeal against judgment and
decree dated 19th July, 2014 passed in Regular Civil Suit No.
259/2010.
2. Parties are referred to as plaintiff and defendants for the
sake of convenience.
3. The facts which led to filing of the present appeal can be
narrated in short as under :-
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Plaintiff/appellant filed Regular Civil Suit No. 259/2010
seeking declaration and injunction in respect of the suit property. It
is his contention that defendant No. 1 has sold land admeasuring 73
R land i.e. the suit property to him under registered sale-deed dated
13th August, 2010. When plaintiff went to revenue authorities for
mutating his name in the revenue record on the basis of said sale-
deed, it was revealed to him that prior to his transaction, sale-deed
dated 5th May, 2010 came to be executed by defendant No. 1 in favour
of defendant No. 2 in respect of 40R land from the land sold to
plaintiff by defendant No. 1. The said suit was dismissed on 19 th
July, 2014. Plaintiff has filed appeal against the said judgment and
decree and as there was delay of 4 years 10 months and 6 days in
preferring civil appeal, miscellaneous civil application came to be
filed on 24th June, 2019, for condonation thereof.
4. It is the contention of plaintiff in the said application that
he was employed with Fire Brigade department at Wai, District
Satara and hence, he could not get information about decision in
Regular Civil Suit No. 259/2010. He claims that the advocate also
did not inform him about the status of the suit. According to him, on
23rd August, 2018, he received notice from defendant No. 1 wherein
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there was a reference about dismissal of the suit. He claims that
thereafter he went to an advocate who opined that the suit is partly
dismissed and hence there is no need to prefer any appeal against
decree. Thereafter he again sought opinion from another lawyer, and
as per the opinion given by this lawyer, he applied for certified copies
of judgment and decree passed in Regular Civil Suit No. 259/2010.
5. Learned First Appellate Court initially rejected the
application. The said order came to be challenged by plaintiff in
Second Appeal no. 303/2021. This Court has relegated the
application back to the First Appellate Court directing the said Court
to given an opportunity to the plaintiff to lead evidence. After
evidence was led, the impugned judgment and order came to be
passed rejecting the application. Hence, this appeal.
6. Learned counsel for plaintiff submits that there is
registered sale-deed executed in favour of plaintiff in respect of 73R
land and even if it is accepted that defendant no. 1 had no right to
execute the sale-deed in respect of the entire land, the Trial Court
ought to have held that the transaction of plaintiff in respect of 33 R
land is valid. It is his further contention that no prejudice much less
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irreparable loss will be caused to defendant No. 1 if delay is condoned
and appeal is heard on merit. It is his submission that delay may be
condoned by imposing appropriate cost. To support his submissions,
he placed reliance on following judgments :-
(i) Bhivchandra Shankar More vs. Balu gangaram More
LAWS (SC) 2019 5 32.
(ii) Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy
AIR (SCW) 2013 6158
(iii) Sonerao Sadashivrao Patil vs. Godawaribai Laxmansingh
Gahirewar
MHLJ 1992 (2) 272
(iv) Baburao Deorao Wankhede vs. sewa Sahakari Sanstha
& another
1989(2) Bom.C.R. 15.
(v) Collector, Land Acquisition Anantnag vs. Mst. Katiji
AIR 1987 SC 1353.
7. Learned counsel for defendants opposed the said
contention by citing inordinate delay of 4 years and 10 months for
preferring the appeal. By referring to the impugned judgment and
order, it is contended that the First Appellate Court has rightly taken
into consideration the inaction on the part of the plaintiff in filing
appeal. It is his submission that contention of the plaintiff that he
had no knowledge about dismissal of suit on 23 rd August, 2018, and
as a result, the appeal has not been filed in time is not acceptable in
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facts of the case and this would show malafides on the part of the
appellant.
8. This Court is unable to concede to the submission made
by learned counsel for the plaintiff that since plaintiff has merit in
his case, the delay needs to be condoned. If this proposition is
accepted, then provisions of limitation act will become otiose. The
Hon'ble Supreme Court in number of judgments has held that delay
should be condoned provided there is no inaction, negligence or want
of bonafides attributable to the applicant. This Court, therefore, is
required to consider as to whether plaintiff herein satisfies the said
criteria. Plaintiff has come out with a specific case that he did not
have knowledge about dismissal of the suit for want of information
from the advocate and for the reason that he was staying away. As
rightly observed by the First Appellate Court that plaintiff is literate
person and as such he ought to have been diligent in keeping track
on his proceeding. Even if it is accepted for the sake of argument
that plaintiff did not have knowledge of the decision in Regular Civil
Suit No. 289/2010, however, it does not stand to any reason or
justification as to why no appeal was filed after written notice issued
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by defendant No. 1 on 23rd August, 2018 intimating about dismissal
of suit.
9. Explanation sought to be given about lawyer advising
him not to prefer appeal as the suit is partly dismissed, does not
inspire confidence in the facts and circumstances of the case. There
is absolutely no evidence in order to show that any such advice was
ever sought from any advocate. Even name of said advocate is not
disclosed, much less examining him. The factum of dismissal of suit
was communicated to plaintiff by defendant by notice dated 23 rd
August, 2018. Even then no action is taken to prefer appeal. The
contention about he went to seek opinion and thereafter an
application was made for certified copies of judgment and then
appeal came to be filed is also unreliable. As rightly held by the
First Appellate Court that even after obtaining certified copies of the
judgment and decree passed in Regular Civil Suit No. 259/2010,
appeal is not filed within time. In any case it cannot be ignored that
inordinate delay has been caused in filing the appeal and unless
genuine cause is made out therefor, delay does not deserve
condonation.
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10. All aforestated facts clearly show that plaintiff was grossly
negligent in taking appropriate action. There is reason to hold that it
is deliberate inaction on the part of the plaintiff in not preferring
appeal against the impugned judgment and decree in time. Nothing
is brought on record by plaintiff to show that he was prevented from
preferring appeal for any reason beyond his control. Having regard to
these facts, this Court finds no perversity in the findings recorded by
the First Appellate Court. Since the findings are in consonance with
the facts and circumstances of the case and evidence on record, this
Court finds no substantial question of law being involved in this
appeal. Hence, appeal is dismissed.
11. Pending application, if any, does not survive and stands
disposed of.
( R. M. JOSHI)
Judge
dyb
