Sou. Kamlabai Jaiwant Waghmare ... vs Nanda Shavrappa Koli (Since Deceased) ...
2024 Latest Caselaw 1635 Bom

Bombay High Court

Sou. Kamlabai Jaiwant Waghmare ... vs Nanda Shavrappa Koli (Since Deceased) ... on 19 January, 2024

Author: Sharmila U. Deshmukh

Bench: Sharmila U. Deshmukh

                                                             33 Sa-258-2017.doc


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION


                  SECOND APPEAL NO. 258 OF 2017

Sou. Kamlabai Jaiwant Waghmare
Since deceased through legal heirs
and Others.                                          ...Appellants.
        Versus
Nanda Shavrappa Koli and Others.                     ...Respondents.

                                 ------------
Mr. R. S. Alange for the appellant.
                                 ------------


                              Coram : Sharmila U. Deshmukh, J.

                              Date     : January 19, 2024.

P. C. :

1. Being aggrieved by the judgment dated 7th January 2014

rejecting the application for condonation of delay, the original

defendant is before this Court.

2. Regular Civil Suit No.10 of 1998 was filed by the plaintiff

seeking partition and separate possession of the ancestral properties.

The suit proceeded ex-parte as in spite of summons defendant nos. 2

and 3 failed to appear.

3. After a period of 6 years, an appeal came to be filed along with

an application for condonation of delay. The application came to be

Patil-SR 1 of 2 33 Sa-258-2017.doc

rejected on the ground that there is no evidence to show that the

appellant was not served with summons.

4. Learned counsel appearing for the appellant submits that the

First Appellate Court has erred in dismissing the application for

condonation of delay as the same is required to be considered

leniently. He would submit that explanation tendered in support of

the application for condonation of delay was sufficient to condone the

delay.

5. Considered the submissions and perused the record.

6. Under section 100 of the Code of Civil Procedure, 1908 this

Court can exercise powers only in case where substantial question of

law arises. In the present case, as to whether there was sufficient

cause for condonation of delay is a question of fact and as such no

substantial question of law arises. Appeal stands dismissed.

7. In view of the disposal of second appeal, pending application, if

any, does not survive and the same is disposed of.

                                                                             [Sharmila U. Deshmukh, J.]




                              Patil-SR                             2 of 2
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 19/01/2024 17:38:56