Datta Govind Darge And Ors vs Ramkrushna Vithoba Darge And Ors
2024 Latest Caselaw 2968 Bom

Bombay High Court

Datta Govind Darge And Ors vs Ramkrushna Vithoba Darge And Ors on 31 January, 2024

Author: Sandeep V. Marne

Bench: Sandeep V. Marne

2024:BHC-AS:5597

            kishor                                  1/3                61 SA 572 of 2022 (C).doc



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                         CIVIL APPELLATE JURISDICTION

                                        SECOND APPEAL NO. 572 OF 2022



            Datta Govind Darge And Ors.                           ...Appellants
                  Versus
            Ramkrushna Vithoba Darge And Ors.                     ...Respondents

                                                          ....
            Mr. Pratik B. Rahade, for Appellant.
            Ms. Shruti Tulpule, for Respondent No.4.
                                               ....

                                                    CORAM : SANDEEP V. MARNE, J.

DATED : 31 JANUARY 2024.

P.C. :

By the present Appeal, Appellants challenge Order dated 18

February 2021 passed by Extra Joint District Judge and Additional Sessions

Judge, Mangaon, District Raigad rejecting Civil Miscellaneous Application

No.02 of 2010 filed seeking condonation of delay of 40 days in filing the

Regular Civil Appeal against the decree dated 24 October 2019 passed in

Regular Civil Suit No.60 of 2016.

kishor 2/3 61 SA 572 of 2022 (C).doc

2. By Order dated 02 January 2023, this Court has admitted the

Appeal by formulating the following question of law :

Whether the Judgment and Decree dated 18th November 2021 passed by the learned First Appellate Court is proper, as valid reasons given for condonation of delay are not taken into consideration ?

3. I have heard Mr. Rahade, the learned counsel appearing for

Appellant and Ms. Tulpule, the learned counsel appearing for Respondent

No.4. Despite being served after admission of Appeal, Respondent Nos.1 to 3

have not appeared in the Appeal.

4. In the present case, the Suit was dismissed by the Trial Court by

decree dated 24 October 2019. The Appellant applied for certified copies on

01 November 2019 and received the same on 18 November 2019. The

Appeal was filed on 04 January 2020. In that process, delay of 40 days has

occurred in filing the Appeal. One of the reasons pleaded by the Appellant for

seeking condonation of delay is his sickness. However, the First Appellate

Court has held that period of sickness of the Appellant was only for the period

from 25 October 2019 to 06 November 2019. Thus, instead of taking a

liberal view while deciding the application for condonation of delay, the

approach of the First Appellate Court appears to be rigid where the First

Appellate Court expected the Appellant to explain each days delay after expiry

kishor 3/3 61 SA 572 of 2022 (C).doc

of period of limitation up to 24 November 2019. The law of limitation is

founded on public policy and some lapse on the part of litigant would not be

sufficient to deny condonation of delay as the same would cause miscarriage

of justice. The Apex Court has repeatedly held that parties are not expected to

explain each days delay. Reference in this regard can be made on the

Judgment of the Apex Court in Sheo Raj Singh Vs. Union of India, Civil

Appeal No.5867 of 2015 decided on 09 October 2023.

5. I am, therefore, of the view that First Appellate Court has erred

in rejecting Application for condonation of delay. The question formulated by

this Court is answered in the negative. The Order dated 18 November 2021

passed by First Appellate Court is accordingly set aside. The Application for

condonation of delay filed by the Appellant is allowed. The Regular Civil

Appeal filed by Appellant be registered and decided the same on it's own

merits. With the above observations, Second Appeal is allowed. No order as

to costs.

SANDEEP V. MARNE, J.

KISHOR by KISHOR VISHNU VISHNU Date:

KAMBLE

KAMBLE 2024.02.06 10:17:28 +0530