Bombay High Court
Rajendra Chandrakant Mohite And Others vs Bhaskar Bhanudas Unde And Others on 10 June, 2025
2025:BHC-AUG:14739
1 913.CRA.119-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 119 OF 2024
1. Rajendra s/o Chandrakant Mohite
2. Sakharbai Chandrakant Mohite
3. Mansing Rambhau Mohite
4. Sanjay Mansing Mohite
5. Sunil Mansing Mohite
6. Baysabai Mansing Mohite
7. Chaya Uttam Mohite
8. Jayashri Ambadas Gangarde ...Applicants
VERSUS
1. Bhaskar Bhanudas Unde
2. Mahadev Bhanudas Unde
3. Gorakh Bhanudas Unde
4. Dipak Bhanudas Unde
5. Housrao Bhanudas Unde
5-A. Sangita Housrao Unde
5-B. Akshay Housrao Unde
5-C. Sushant Housrao Unde
6. Hirabai Maruti Dharkar
7. Suman Dattatray Palsakar
8. Kamal Appasaheb Palsakar
9. Sunita Balasaheb Wagaskar ...Respondents
...
Advocate for Applicants : Mr. Tambe Rahul A.
Advocate for Respondent Nos. R/1 TO 4, 5A TO 5C, 6 TO 9 :
Mr. Gangakhedkar Shailendra S
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 10th JUNE 2025
ORAL JUDGMENT :
1. Heard both the sides.
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2. This Revision Application is directed against order dated
05.10.2021 passed by the learned District Judge-2, Shrigonda in Civil
Miscellaneous Application No.28/2020, condoning delay of 1047
days in preferring regular Appeal under Order 41 of the Code of Civil
Procedure. Applicants are original defendants in a suit filed for
injunction by the Respondents. They had also filed counterclaim for
injunction.
3. Respondents had filed RCS No.257/2011 for perpetual
injunction. It was dismissed for default on 28.11.2016. Applicants
had preferred counterclaim for injunction which was continued even
after dismissal of the suit. By judgment and decree dated 13.10.2017,
counterclaim was allowed, granting perpetual injunction against the
Respondents. Respondents had preferred RCS No.86/2020 on
17.03.2020 which was subsequently withdrawn on 25.09.2020.
Thereafter they filed appeal under Order 41 of C.P.C., challenging
decree passed in counterclaim alongwith the application for
condonation of delay bearing Civil M.A. No.28/2020. It was
contested by the Applicants. By impugned order, Appellate Court
condoned the delay by imposing cost.
4. Learned Counsel Mr. Rahul Tambe appearing for the
Applicants submits that there is huge delay of 1047 days and no
proper explanation was given. It is submitted that there was no due
diligence and bonafide on part of the Respondents in preferring
appeal belatedly. The Respondents are not entitled to any benefit of
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Section 14 of the Limitation Act. They should have filed appeal
instead of RCS No.86/2020. Learned Counsel would further submit
that its a error of jurisdiction on part of lower Appellate Court in
overlooking the provision of Section 5 of the Limitation Act. No
reasons are assigned by learned Judge in that regard. It is further
contended that all aspects of the matter have not been dealt with in
the impugned order.
5. Per contra, learned Counsel Mr. S. G. Gangakhedkar
appearing for the Respondents would submit that there is no
perversity or patent illegality or error of jurisdiction in the impugned
order. Substantive right of the Respondents are at stake and
pragmatic approach has been taken. It is further submitted that
under bonafide impression, RCS No.86/2020 was filed which was
withdrawn subsequently. He would further submit that learned Judge
has taken into account Section 5 as well as Section 14 of the
Limitation Act. It is vehemently contended that his clients were not
apprised of the order dated 28.11.2016 as well as judgment and
decree dated 13.10.2017 passed in the counterclaim. Additionally, he
would submit that due to lock-down from 22.03.2020 to 21.03.2022,
the Respondents are entitled to receive the benefit which minimizes
the period of delay.
6. Respondents tender on record copies of following
judgments :
(a) Sridevi Datla Vs. Union of India and Others
(2021) 5 SCC 321
4 913.CRA.119-2024.doc
(b) Esha Bhattacharjee Vs. Managing Committee of
Raghunathpur Nafar Academy and Others
(2013) 2 SCC 649
(c) Varco Buildcon Through its Partner Vikramsing Arjunsinh
Dalwala and Anr Vs. Laxmibai Parlhadrao Nand and Others
Appeal from Order (Stamp) No.18672/2024
7. I have considered rival submissions of the parties. The suit
filed by the Respondents for injunction was dismissed on 28.11.2016,
but counterclaim for injunction continued. Applicants' counterclaim
was allowed on merits on 13.10.2017. Respondents filed RCS
No.86/2020 on 17.03.2020 and it was withdrawn on 25.09.2020.
Civil Appeal against decree passed in counterclaim was filed on
07.09.2020 alongwith application for condonation of delay. A part of
period of delay falls in lock-down i.e. from 22.03.2020 to
21.03.2022. This ground was not specifically taken in the application
for condonation of delay, but judicial notice can be taken. Though the
delay of 1047 days was sought to be condoned, the period covered by
lock-down needs to be excluded. Than would minimize total period
of delay.
8. Pertinently, appeal preferred by the Respondents is against
decree passed in counterclaim, on merits. In the present matter, suit
of the Respondents was dismissed and thereafter counterclaim was
decreed. A copy of plaint of RCS No.86/2020 is placed on record
which shows that decree passed on 13.10.2017 in RCS No.527/2011
5 913.CRA.119-2024.doc
was challenged and the injunction was also prayed for. Near about
six months period was consumed in prosecuting the suit. No
malafides can be attributed to the Respondents. The reasons assigned
by the learned Judge in that regard cannot be faulted.
9. It is not a case of the Applicants that the Respondents have
been benefited by prosecuting wrong remedy and thereafter
approaching Appellate Court belatedly. Respondents are already
facing decree of injunction. In that view of the matter, lower
Appellate Court has rightly applied mind and passed reasonable and
plausible order.
10. Perusal of the impugned order discloses that benefit of
Section 14 of the Act was given to the Respondents. It reveals that
the purport of Section 5 of the Act was kept in mind and considered
in the order. The submission of learned Counsel Mr. Tambe cannot be
countenanced that Section 5 of the Act was totally overlooked. In the
application for condonation of delay, specific grounds were raised for
the explanation under Section 5 and those were considered by the
lower Appellate Court in the impugned order. I do not find that there
is any error of jurisdiction or patent illegality in the impugned order.
11. By impugned order, delay was condoned by imposing cost
of Rs.2000/-. The substantive right of the Respondents are at stay
and therefore they have preferred appeal challenging decree passed
on 13.10.2017. Taking pragmatic view of the matter, it would be
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desirable to examine the matter on merits, instead of rejecting the
matter at the threshold of the technicalities.
12. Reliance is placed by the Respondents on the judgment of
Sridevi Datla (supra). I have gone through the Paragraph Nos. 23 to
28 of the judgment. Principles laid down by the Supreme Court are
applicable to the case in hand. I have already endorsed that there are
bonafides on part of the Respondents and no prejudice would be
caused to the Applicants. I have also considered judgment in the
matter of Esha Bhattacharjee (supra). Principles laid down in
Paragraph Nos. 8 to 12 support the Respondents. There is no reason
to defer from the view taken by the coordinate bench in the matter of
Varco Buildcon Through its Partner Vikramsing Arjunsinh Dalwala
and Anr (supra).
13. For the reasons assigned above, I do not find that any case
is made out to cause interference in the impugned order. Civil
Revision Application is rejected. There shall be no order as to cost.
14. After pronouncement of the judgment, learned Counsel for
the Applicants prays for continuation of the ad-interim relief granted
on 28.10.2021, staying the operation and execution of order dated
05.10.2021. It reveals from record that initially Writ Petition
No.12112/2021 was filed, challenging the impugned order which
was later on converted into Revision Application. Due to the stay
obtaining at the relevant time, appeal of the Respondents has not
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been registered. Considering the time consumed after 05.10.2021, I
am not inclined to accept the request made by the Applicants.
Request for continuation of the interim relief is rejected.
SHAILESH P. BRAHME
JUDGE
NAJEEB..
