Bombay High Court
Mahananda Baburao Kalge And Ors vs Sarika @ Sangita Santosh Mathpati on 24 January, 2024
2024:BHC-AUG:1905
1 966-SA 575-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 575 OF 2023
Mahananda Baburao Kalge and others .. Appellants
Versus
Sarika @ Sangita Santosh Mathpati .. Respondent
Mr. Suniket A. Kulkarni, Advocate for the Appellants.
Mr. Sunil M. Vibhute, Advocate for Respondent.
WITH
CIVIL APPLICATION NO. 14447 OF 2023
IN SA/575/2023
CORAM : R. M. JOSHI, J.
DATE : 24th JANUARY, 2024.
PER COURT :-
. This appeal is preferred against the order dated 12.10.2023
passed by the First Appellate Court refusing delay of 120 days caused in
preferring appeal against the judgment and decree passed in R.C.S.
No. 457/2019.
2. The learned counsel for the appellants submits that, the First
Appellate Court has failed to taken in consideration the dispute
between the parties pertains to the partition of the properties.
According to him, it is also ignored by the First Appellate Court that the
suit was tried during the Covid-19 pandemic period. It is his
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submission that, the findings are recorded by the First Appellate Court
that the learned advocate for the defendants appeared before the Court
on number of occasions will not be sufficient to hold that the
defendants having the knowledge of the same. According to him, delay
is not deliberate and nevertheless it is not inordinate delay in order not
to condone the same.
3. The learned counsel for the contesting respondent/original
plaintiff opposes the application. His submission is that, no sufficient
ground is made out for condonation of delay.
4. I have perused the findings recorded by the First Appellate Court
in paragraph Nos. 14 to 16. The original suit was filed in October 2019
and was decided on 13.10.2022. During this period undisputedly
Covid-19 pandemic situation existed. Though by October 2022, things
were normalized, however, considering the age of the appellant No. 1
who was aged about 70 years there is reason and justification to accept
her reason that she has no contact with her advocate. Certainly, delay
is not inordinate. All these facts ought to have been considered by the
First Appellate Court while considering the application for condonation
of delay.
5. This Court therefore finds perversity in the findings recorded by
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the First Appellate Court in refusing to entertain the application for
condonation of delay which is substantial question of law. Having
regard to aforesaid facts, subject to cost of Rs. 2,000/- (Rs. Two
Thousand only) payable to the plaintiff impugned order dated
12.10.2023 is set aside. The Civil Miscellaneous Application
No. 6/2023 stands allowed.
6. The cost be paid in the First Appellate Court within a period of
four (04) weeks from today. If cost is not paid or deposited within four
(04) weeks, this order shall stand vacated. The first appeal be
registered on compliance of this order.
7. In view of the above, second appeal stands allowed.
8. Pending Civil Application No. 14447/2023 also stands disposed
of.
( R. M. JOSHI, J. )
P.S.B.
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