Bombay High Court
Dilip Khandu Kale vs Deotabai W/O Ganpat Wanjare And Ors on 18 January, 2024
2024:BHC-AUG:1119
919-CA-15506-2023+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 15506 OF 2023
IN SAST/36152/2023 WITH
CIVIL APPLICATION NO. 15508 OF 2023
IN SAST/36152/2023 WITH SAST/36152/2023
Dilip Khandu Kale
....Applicant
VERSUS
Deotabai W/o Ganpat Wanjare And Ors
.....Respondent
.....
Mr. Mayur Subhedar h/f Mr. C. V. Dharurkar,
Advocate for Applicant
...
CORAM : R.M. JOSHI, J
DATE : JANUARY 18, 2024
PER COURT :
1. This Appeal is filed under Section 100 of Code
of Civil Procedure taking exception to the judgment and
order dated 07.10.2022 passed in Civil M.A. No.
149/2018. Civil application came to be filed as there
was delay caused in preferring First Appeal against
judgment and decree dated 03.11.2009 passed in RCS No.
55/2005. Appellant/Original Defendant was seeking
condonation of delay of 8 years and 7 months in
preferring the said Appeal. Not only delay was caused
in preferring first appel, however, present second
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appeal is also sought to be filed after delay of 204
days.
2. Learned Counsel for the Appellant submits that
Appellant has good case to make out on merits.
According to him, First Appellate Court has committed
error in not considering the case of the Appellant
before it for condonation of delay.
3. This being Appeal under Section 100 of Code of
Civil Procedure, it must involve substantial question
of law. Even in order to issue notice to the other side
for condonation of delay, Court has to satisfy itself
at least prima facie that some substantial question of
law is involved in this Appeal.
4. There is no dispute about the fact that though
in RCS No. 55/2005 defendant/Appellant received notice
but failed to appear before the trial Court. Suit came
to be filed in the year 2005 and was decided in
November, 2009 It is thus, clear that there was no
haste on the part of the trial Court to decide the
suit. In the circumstances, at the first instance it
was necessary for the Appellant/original defendant to
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make out a case before the First Appellate Court giving
sufficient reason for their non appearance. Perusal of
the Appeal memo before First Appellate Court whispers
nothing about it. Even in the application filed for
condonation of delay it is vaguely stated that on
09.02.2018 Appellant came to know about order. There is
nothing mentioned as to how Appellants came to know
about it. A mere creation of cause of action is not
sufficient for condonation of delay. There must exist
genuine cause of action and thereafter, it is permitted
for the party to substantiate the sufficient reason for
condonation thereof.
5. Here in this case, application as well as
Appeal memo sought to be filed before the First
Appellate Court gives absolutely no reason much less
sufficient reason or justification for delay. There is
nothing to indicate that for reasons beyond control of
the Appellant, he could not appear before trial Court
or was prevented from filing Appeal against judgment
for period of 8 years. First Appellate Court,
therefore, was perfectly justified in rejecting the
application for condonation huge delay.
919-CA-15506-2023+.odt
6. Having regard to the aforestated facts, no
case is made out even for issuance of notice to other
side. In the result, application for condonation of
delay stands dismissed. Consequently, question of
entertaining appeal does not arise. Pending
applications are also disposed of.
(R. M. JOSHI, J.)
Malani
