Bombay High Court
Sou. Kerabai @ Vijaymala Vishnupant ... vs Shri. Dagadu Gopal Patil And Others on 1 March, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:10882
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.231 OF 2015
WITH
CIVIL APPLICATION NO.487 OF 2015
Sou. Kerabai @ Vijaymala Vishnupant
Talekar ...Appellant
Versus
Shri. Dagadu Gopal Patil And Others ...Respondents
Mr. Prashant Bhavake for the Appellant.
Mr. Chetan G. Patil for Respondent.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 1st MARCH, 2024
P. C. :
1. Being dissatisfied by the order dated 12th March 2014 passed
by the Appellate Court in Civil Application No.20/2013 rejecting the
Application thereby declining to condone the delay of 5 years and 5
months caused in preferring the appeal against the judgment and decree
passed in Special Civil Suit No.488/2004, the original defendant No.3 is
before this Court.
2. Special Civil Suit No.488/2004 was filed by the plaintiff
seeking partition. The present appellant was defendant No.3 in the said
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proceedings and in the written statement filed by defendant No.3 it was
specifically pleaded that she has relinquished her share in the properties in
favour of the plaintiff and defendant No.1, who are the brothers of
defendant No.3. The Trial Court by judgment and decree dated 4 th
August 2007 partly decreed the Suit declaring that the plaintiff and
defendant 1 and 2 have 1/3rd share each in the properties mentioned in
the decree. As against this the Defendant No.1 preferred an appeal and
before the First Appellate Court the defendant No.3 was arrayed as party
and had appeared in the appeal proceedings.
3. The First Appellate Court dismissed the appeal of defendant
No.1 as against which SLP preferred by defendant No.1 also came to be
dismissed. It appears that subsequently execution proceedings have been
filed by the plaintiff and thereafter the appeal was filed by defendant No.3
after delay of about 5 years and 5 months.
4. In support of the Application for condonation of delay
evidence was led. The Appellate Court upon consideration of the
evidence rejected the Application on the ground that the appellant was
well aware of the proceedings and had also admitted her signature on the
written statement filed before the Trial Court. The Appellate Court
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considered that the Suit of the year 2004 had reached finality up to the
Apex Court in the year 2012 and till that time appellant had not raised
any objection and it is only when decree is to be executed, Appeal has
been preferred. The Appellate Court held that there is no sufficiency of
cause shown and rejected the Application.
5. Heard Mr. Prashant Bhavake for the Appellant and Mr.
Chetan G. Patil for Respondent.
6. Mr. Bhavake, learned counsel appearing for the appellant
would submit that the original defendant No.3 though being a co-
parcener in her own right was denied her share in the ancestral property.
He submits that it is a specific case of the appellant that upon a
misrepresentation that she would be given her share, signatures were
obtained on the written statement which contained pleading as regards
relinquishment of her share, which is not the case. He would submit that
appellant was not aware of the passing of the decree and as such there was
delay in filing the appeal. He would submit that considering the merits of
the matter the Application may not be thrown out at the threshold and
appeal is required to be adjudicated on merits. He submits that the
substantial question of law which arises is the arbitrary exercise of
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discretion by the Appellate Court while deciding the Application for
condonation of delay.
7. Per contra, learned counsel appearing for respondent No.1
would submit that in the written statement defendant No. 3 had
supported the case of defendant No.1 and had specifically pleaded that
she has relinquished her rights in the property. He submits that the
Defendant No.3 also appeared in the Appellate proceedings and as such
was well aware of passing of the decree. He submits that the present
Appeal is filed to support the case of defendant No.1 who failed up to the
Apex Court and only thereafter Appeal was filed to stall the execution of
decree of the year 2007.
8. Considered the submissions and perused the record.
9. The issue which is required to be considered is whether the
Appellate Court had rightly exercised the discretion vested in it while
adjudicating an Application for condonation of delay. It is settled that it is
for the Appellate Court to decide sufficiency of the cause at the time of
adjudicating the application for condonation of delay and in appeal
proceedings the Appellate Court is only required to consider whether the
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discretion exercised has been rightly exercised. The pleadings in the
Application seeking condonation of delay would indicate that the same is
on the merits of the matter and learned counsel for the appellant has not
been able to point out any pleading setting forth the explanation in the
Application for condonation of delay of 5 years and 5 months caused in
preferring the Application. The Appellate Court upon appreciation of the
evidence on record and after considering the admissions of the appellant
admitting her signature on the written statement filed before the Trial
Court, the admission was that she is aware of the proceedings right up to
the Apex Court as well as upon going through the documentary evidence
showing that she has received notice by signing it and had appeared in
the appeal has come to a finding that no sufficient cause has been shown
to condone delay.
10. The Appellate Court has rightly appreciated the oral and the
documentary evidence which has come on record and has thereafter
exercised jurisdiction vested in it judicially. It cannot be said that the
discretion exercised by the Court is arbitrary. As such no substantial
question of law arises. Appeal stands dismissed.
11. At this stage, request is made for continuation of interim
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relief that execution to continue but possession not to be handed over for
a further period of 8 weeks. Appeal is of the year 2015 and decree of the
year 2007 has not yet been executed. In that view of the matter, I am not
inclined to extend interim relief. Request is rejected.
(SHARMILA U. DESHMUKH, J. )
