Bombay High Court
Kashinath Anna Jadhav (Since Decd.) ... vs Vasant Shankar Savant And Anr on 5 February, 2024
2024:BHC-AS:6485 1-ASWP-6326-2018(J).DOC
Ganesh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6326 OF 2018
1. Kashinath Anna Jadhav
Deceased through legal heirs
1a. Ramesh Kashinath Jadhav
Age: 48 years, Occ: Agriculturist,
1b. Bhikubai Kashinath Jadhav
Age: 74 years, Occ: Household
1c. Padmavati Mansingh Savant
Age: 44 years, Occ: Household,
All 1a to 1c r/o. Visapur, Tal: Khatav,
District Satara.
1d. Surekha Dyandev Waghmale
Age: 40 years, Occ: Household,
R/o. Sayadri Niwas, Mira Road,
District: Thane
Nos. 1a to 1d through Power of Attorney
Holder, Ramesh Kashinath Jadhav
Age: 48 years, Occ: Agriculturist,
r/o. Visapur, Tal. Khatav, District- Satara. ...Petitioners
Versus
1. Vasant Shankar Savant
Age: 69 years, Occ: Agriculturist
2. Rajaram Sitaram Savant
Age: 51 years, Occ: Agriculturist
r/o. Visapur, Tal. Khatav,
District-Satara ...Respondents
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Mr Dhananjayrao D Rananaware, a/w Manjeet Lotankar, for
the Petitioners.
Mr Sujay Gangal, for Respondent No.1.
CORAM Kamal Khata, J.
DATED: 5th February 2024
ORAL JUDGMENT:-
1. Rule. The rule is made returnable forthwith with the consent
of the parties, and the Petition is disposed of finally at the admission
stage.
2. This Petition under Article 227 of the Constitution of India,
seeks to set aside the impugned order dated 1 st February 2018
passed by the Learned Civil Judge Junior Division (CJJD)., Vaduj,
District - Satara. By the said order, the Learned Judge dismissed the
Application for condonation of delay filed by the Petitioners.
3. It is the case of the Petitioners that they are the successors of
one Kashinath Anna Jadhav (Original Defendant No.2) in Regular
Civil Suit No. 131 of 2006. The suit was filed by Respondent No.1
(Original Plaintiff ) for an injunction against the Defendants from
disturbing possession of the Plaintiff over the suit property, i.e., land
bearing Gat No. 1909 admeasuring 1H, 52R, out of which 21R has a
house property bearing No. 1174. The said suit was decreed ex parte
by an order dated 25th August 2011 in Regular Civil Suit (RCS) No
131 of 2006 at Exhibit 'A' page 15 of the Petition. It is the case of the
Petitioners that at that relevant point of time, Petitioner No. 1 was
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residing at Mumbai and was a daily wage earner. According to him,
his deceased father was illiterate, old-aged, and bedridden when the
suit was instituted. In those circumstances, he did not attend the
suit, and thus it was decided ex parte. It is the case of the Petitioners
that the father died soon after the suit was decreed. The Petitioners
allege that they were not aware of the impugned judgment and
decree and became aware of the said decree when they received
notices in execution proceedings. Thereafter, on 2 nd August 2014,
the Petitioners obtained certified copies of the judgment and decree
and immediately on 15th September 2014 filed Application, namely,
Civil Misc. Application (CMA) No.39 of 2014, for condonation of
delay and setting aside the ex-parte decree.
4. Upon hearing the both parties, the trial Court came to a
conclusion that the Petitioners did not show sufficient cause for
condonation of delay for setting aside the ex parte decree and
consequently dismissed the CMA No. 39 of 2014 by the impugned
order dated 1st February 2018.
5. Mr Rananaware submits that the trial Court failed to consider
that the suit was filed with ulterior motives to grab the Petitioners'
property. He submitted that in the above-stated circumstances, as
more particularly stated in the Petition, the delay should be
condoned, and the Petitioners ought to be given an opportunity to
prove their case.
6. Mr Gangal, for Respondent No.1, submits that there is no
apparent ground mentioned in the Petition, which would entitle the
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Petitioners for setting aside the judgment dated 1 st February 2018.
He pointed out that the impugned judgment has specifically
mentioned that the suit was for partition and fixation of boundary.
The Petitioners' deceased father was duly served with the
summons. He had wilfully remained absent. There is no mention as
to why he was not represented nor was it pointed out as to why the
Petitioners could not have been asked to attend the matter. It is not
the case of the Petitioners that the Petitioners were minors at the
relevant point of time. There is no explanation according to the
learned counsel as to why for more than three years after the decree
there was no application made to set aside the decree. The Court
has also recorded that the contention raised by the Petitioners that
the father was ill was not substantiated by any medical certificate or
any documentary evidence to show that he was sick all through
before he expired and thus the contention of the Petitioners not at
all substantiated. Neither the death certificate was produced before
the Trial Court nor is the date of death mentioned in this Petition.
Learned counsel also pointed out that the learned Judge has
considered the Affidavit of Evidence that was filed and then had
come to a conclusion and thus he considered all the aspects of the
Respondents' matter before passing the ex parte decree. In the
events set out in the order, the learned Judge has expressed that the
Petitioners have not explained the delay as required by statute.
Leave aside an explanation for day to day delay.
7. The learned counsel also pointed out that after the suit was
decreed, the decree has also been satisfied by partition of the lands
and the possession being handed over to the Respondents. He
submits, therefore, that the decree having been satisfied, nothing
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survives in this Petition. He accordingly submits that the Petition be
dismissed.
8. I find merit in the contention of the Respondents. I find no
reason as to why the Petitioners in this Petition should be
entertained. There is no explanation sought to be given even in the
Petition as to what prevented the Petitioners from attending the suit
since the time it was served and even after the demise of the father.
No particulars of the illness or medical certificate has been
produced. Moreover, no death certificate has been produced. A
party who does not act with due diligence cannot be granted any
reliefs by the Court. The Petitioners have suppressed material facts
and are thus not entitled to get any relief. I am therefore inclined to
dismiss the Petition.
9. Petition accordingly dismissed.
10. Rule is discharged. No order as to costs.
Digitally
signed by
GANESH
GANESH SUBHASH
SUBHASH LOKHANDE
LOKHANDE Date:
2024.02.09
13:24:32
+0530
(Kamal Khata, J)
5th February 2024
