Bombay High Court
Jayawanta W/O Atmaram Rukhmode And ... vs Baburao Motiram Kapgate And Another on 9 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:535
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL APPLICATION (CAS) NO. 1208 OF 2022
IN
SECOND APPEAL ST. NO. 12942 OF 2022
Jayawanta w/o. Atmaram Rukhmode (Dead) thr. L.Rs. & Ors.
Vs.
Baburao Motiram Kapgate (Dead) thr. L.Rs. & Anr.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Nitin Vyawahare, Advocate for the Applicants/Appellants.
Mr. P.M. Sinha, Advocate for Respondent Nos.2(a) to 2(f).
CORAM : G. A. SANAP, J.
DATED : 9th JANUARY, 2024.
Heard learned advocates for the parties.
2. The applicants have made this application for
condonation of 2160 days delay caused in filing second appeal
against the judgment and decree passed by the First Appellate
Court dated 30th June, 2014. The applicants are the original
plaintiffs and the respondents are the original defendants.
3. It is the case of the applicants that they had filed a
Regular Civil Suit No.208/1999, seeking decree of partition
and separate possession of the suit property more particularly
described in the plaint. The suit was decreed. The said
judgment and decree was challenged by the respondents before
the First Appellate Court. The First Appellate Court modified
the said decree and held the applicants entitled to get 1/15 th
share in the suit property. According to the applicants, they,
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being the Class-I heirs of the deceased, are entitled to get equal
share with their brothers-original defendant Nos.1 and 2.
4. According to the applicants, they have a good case
on merits. They are entitled to get equal share with their
brothers in the suit property. According to them, the
proceedings throughout were attended by their respective
husbands. They are rustic villagers. They are not aware of the
procedural niceties. They believed their respective husbands.
Their husbands did not inform them about the future course of
action and, therefore, the second appeal could not be filed
within time. They have approached this Court as soon as they
came to know that they have right to file the second appeal
against the impugned judgment and decree. It is stated that they
have a good case on merits. If the delay is not condoned, then it
would cause irreparable loss to them. They would be deprived
of an opportunity to get equal share in the suit property with
their brothers. According to them, the reasons stated by them
are sufficient to make out a case for condonation of delay.
5. The respondents have filed the reply and opposed
the application. According to the respondents, the delay of
2160 days is inordinate delay by any means. According to the
respondents, no case has been made out to condone this
inordinate delay. According to the respondents, the grounds
put-forth are just to gain sympathy of this Court. The grounds
put-forth cannot be believed and accepted. The respondents
contend that after the judgment and decree passed by the First
Appellate Court, in the year 2015, the applicants applied for
execution of decree. The decree was finally satisfied after
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effecting the partition by order dated 12th December, 2018. The
respondents contend that this fact would show that all
throughout the applicants were prosecuting the proceeding.
They were aware of the judgment and decree passed by the First
Appellate Court. It is their contention that no case has been
made out to condone the delay.
6. I have heard learned advocates for the parties.
Perused the record and proceedings.
7. The most important question that needs to be
addressed in the factual background is as to whether the
applicants have made out sufficient cause to condone the delay
caused in filing the appeal against the impugned judgment and
decree of the First Appellate Court. The relationship between
the parties is not in dispute. The decree passed by the Trial
Court defining 1/5th share of the applicants with their brothers
came to be modified. The applicants were held entitled by the
Appellate Court to get 1/15th share in the suit property.
8. At this stage, it is necessary to state that the merits of
the matter cannot be gone into while deciding the application
for condonation of delay. Whether a party has a good case on
merits or not, in my opinion, would not be the prime
consideration while deciding the application for condonation of
delay. The Court has to independently analyze the ground
put-forth for condonation of delay. If the Court is satisfied that
the ground put-forth is just and proper, in that event alone the
delay can be condoned. While deciding the application for
condonation of delay, the bona fides of the parties need to be
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borne in mind. On consideration of the material on record, if
the Court finds that the party seeking discretionary relief is
guilty of suppression of material facts and there are mala fides
on the part of the concerned party, then the discretionary relief
cannot be granted in favour of such party.
9. In this case, undisputedly, the execution proceeding
was filed by the applicants. Their husbands were not their
constituted attorney. After the judgment and decree passed by
the First Appellate Court, the applicants applied for execution
of decree in the year 2015. The decree was finally satisfied and
they got their share in the suit property defined by the First
Appellate Court. The execution proceeding was finally closed
on 12th December, 2018 after recording the satisfaction of the
decree. This appeal with the application for condonation of
delay was filed on 10th August, 2022. It is to be noted that even
after satisfaction of the decree, there is about four years delay in
filing this application. The provision providing limitation for
taking recourse to a particular remedy has been made with a
particular object in mind. That object gets frustrated, if the
unwanted and unnecessary indulgence is granted to the party
and that too without satisfying the conscience of the Court on
the basis of the facts and material.
10. In this case, in my opinion, the merits of the claim of
the applicants would be secondary aspect. The primary aspect
would be the cause for filing the appeal after inordinate delay. It
is true that the applicants are the rustic villagers, however, this
factual aspect needs to be appreciated in the totality of the facts
and circumstances obtained on record. In this case, if the
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appellants had remained content with the judgment and decree
by not filing an execution proceeding after the decree, they
would have been believed in contenting that they had no
knowledge of law or procedural niceties and, therefore, the
appeal could not be filed within time. In this case, the applicants
after the decision of the First Appellate Court applied for
execution of decree. The execution was finally disposed of after
handing over the possession of the share of the applicants to
them in terms of the judgment and decree passed by the First
Appellate Court. In my view, the contention of the applicants
cannot be accepted for more than one reasons. The applicants,
in my view, have not come before this Court with clean hands.
Their mala fides have been established. They did not disclose
the fact with regard to the execution of decree in an execution
proceeding filed by them in the year 2015. In my view, this
would reflect upon their mala fides.
11. In the facts and circumstances, I am convinced that
no case has been made out for condonation of delay. The
grounds put-forth are not supported by any material. The
material put-forth on record by the respondents is sufficient to
establish the mala fides of the applicants. Accordingly, the
application, being devoid of substance and merits, is dismissed.
The appeal is also rejected.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 17/01/2024 10:24:51
