Bombay High Court
Keshav S/O Baduji Paratkar vs Suraj S/O Jaypal Patil on 24 March, 2025
2025:BHC-NAG:3382
J SA-234-2024.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.234 OF 2024
APPELLANT : Keshav S/o. Baduji Paratkar,
On R.A. Aged about : 63 years, Occu: Labour, R/o.
Lane No.5, Frezarpura, Mishra Line,
Paratwada, Amravati, Tq and Dist.
Amravati.
..VERSUS..
RESPONDENT : Suraj S/o. Jaypal Patil,
On R.A. Aged about : 39 Years, Occu: Property
Agent, R/o. Prashant Nagar, Amravati, Tq,
and Dist. Amravati.
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Mr H. A. Biherani, Advocate for Appellant.
Mr D. P. Dapurkar, Advocate for Respondent.
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CORAM : M. W. CHANDWANI, J.
DATED : 24th MARCH, 2025.
ORAL JUDGMENT
1. Heard.
2. This appeal challenges the rejection of the first appeal by the
learned District Judge-3, Amravati, whereby the application under
Section 5 of the Limitation Act, 1963 for condonation of delay caused in
filing the first appeal has been dismissed on the ground that the delay has
not been properly explained particularly, for the period of January and
February, 2020.
J SA-234-2024.odt
3. The following substantial question of law came to be framed
by order dated 06.03.2025.
"Whether the First Appellate Court was right in
not considering the reason mentioned in the application
for condonation of delay"
4. With the consent of the learned counsels appearing for the
parties, the matter is taken up for final hearing at the admission stage.
5. Mr Biherani, learned counsel appearing for the appellant
submitted that the appellant is a labourer and most of the time, he used
to remain out of the city. During the relevant period, the appellant had
gone to Mumbai to do labour work. In December - 2019, the appellant
returned to Amravati. In January and February - 2020, the appellant fell
ill. In February - 2020, the pandemic situation started and all the
activities were suspended. In March - 2023, he came to know about the
decree passed in the suit for possession by the respondent, therefore, he
applied for certified copy. An application for condonation of delay came
to be filed before the learned District Judge, Amravati. According to him,
the appellant came to know for the first time about the judgment and
decree passed by the learned Trial Court in March - 2023 and therefore,
within three months, the first appeal came to be filed. The contention is
that the counsel for the respondent did not cross examine the appellant.
J SA-234-2024.odt
The sum and substance of the argument of the learned counsel for the
appellant is that the Appellate Court could have adopted a liberal
approach and could have condoned the delay. Therefore, he seeks setting
aside of the rejection of the application for condonation of delay.
6. Per contra, Mr Dapurkar, learned counsel appearing for the
respondent submitted that though the appellant participated in the
proceedings before the Trial Court but could not produce himself before
the learned Trial Court for cross examination by the appellant despite of
filing of the affidavit of evidence. According to him, the appellant was
very well aware about the proceedings and in spite of knowledge, he did
not prefer an appeal till the execution of the proceedings started. The
delay is not a bona fide one and no sufficient cause has been shown.
Therefore, the First Appellate Court rightly refused to condone the delay
in filing the first appeal.
7. Perusal of the record goes to show that the impugned decree
came to be passed on 04.09.2015 by the learned Trial Court in Regular
Civil Suit No.237 of 2011 and on 16.06.2023, the application for
condonation of delay came to be filed before the learned District Judge,
Amravati, therefore, there is a delay of almost seven years and nine
months. The reason brought before the learned First Appellate Court is
J SA-234-2024.odt
that the appellant was working as a labourer at Mumbai and he returned
to Amravati in the month of December - 2019. It is not in dispute that
the appellant is permanent resident of Amravati. Though, he was doing
labour work at Mumbai from January - 2015, the fact cannot be disputed
that intermediately, he may be visiting Amravati, it being his home town.
That apart, no document has been produced showing that the appellant
fell ill during the period of January and February - 2020. No doubt that
thereafter there was pandemic in entire country for two years, the appeal
came to be filed after the pandemic period was over i.e. more than one
year and three months later.
8. No doubt, a common thread runs through various authorities
of the Hon'ble Apex Court and this Court that while condoning the
delay, a liberal approach is to be adopted and substantial justice cannot be
denied for technical reason, provided that sufficient cause is shown by the
litigant. Moreover, one more principle is to be considered while
considering the delay i.e. that the delay is not mala fide.
9. Considering the facts of the present case, there is no statement
made by the appellant that from January - 2015 to December - 2019, he
never visited Amravati particularly, in view of the fact that he resides in
the suit property itself which is situated at Amravati. That apart, no
J SA-234-2024.odt
document has been filed on record to justify the delay. I do not find that
the learned First Appellate Court has committed any error in not
condoning the delay for filing the first appeal. The appeal is without
merit, therefore, the substantial question of law is answered accordingly.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 03/04/2025 10:34:32
