Bombay High Court
Bharatibai Shivraj Baldava Thr Gpa ... vs Aurangabad Textile And Apparel Parks ... on 20 September, 2025
2025:BHC-AUG:25702 1 19-SA.245-25 & ors (Oral Jud).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.245 OF 2025
WITH CIVIL APPLICATION NO. 1832 OF 2025
IN SA/245/2025
WITH SECOND APPEAL NO. 246 OF 2025
WITH CIVIL APPLICATION NO. 1816 OF 2025
IN SA/246/2025
Bhartidevi Shivraj Baldava,
Age: 71 yrs, Occu.: Household,
R/o. Diwan Devdi, Aurangabad,
Through her G.P.Α.
Jagdish Balkishan Lohiya.
Age: 53 yrs, Occu.: Pvt. Service,
R/o. Gulmandi, Aurangabad. ... APPELLANT
(Ori. Defendant)
VERSUS
Aurangabad Textile & Apparel Parks Ltd.,
Having Registered Office At 63,
T. B. Kadam Marg, Mumbai-400 003
Factory at Kotwalpura, Mill Corner,
Aurangabad.
Through its authorized Signatory,
Jaikrishna Goverdhandas Grover,
Age: 75 years, Occu.: Service,
C/o. As above. ... RESPONDENT
(Ori. Plaintiff)
...
Advocate for Appellants/Applicants : Mr. Shrigopal G. Dodya.
Advocate for Respondent : Mr. Muthiyan Namit Sunil.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 20.09.2025
ORAL JUDGMENT :-
1. Heard both sides.
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2. Both appeals can be decided by common judgment. It
was already indicated in previous order dated 07.07.2025 that
appeals would be decided finally at the admission stage. The
substantial questions of law were also formulated.
Accordingly, both learned counsels addressed on the
substantial questions of law.
3. Facts in both second appeals are identical. The length of
delay is 03 months and 17 days in preferring appeals under
Section 96 of the Civil Procedure Code before Lower Appellate
Court which is referred to be condoned by distinct orders
passed on 13.07.2023. Being aggrieved, second appeals are
preferred.
4. In Second Appeal No.245 of 2025, appellant is original
defendant who suffered decree of injunction in Regular Civil
Suit No.590 of 2016 on 24.03.2023. Being aggrieved, appeal
under Section 96 was preferred belatedly.
5. In Second Appeal 246 of 2025, appellant is original
plaintiff who had filed Regular Civil Suit No.465 of 2017 for
injunction. It was dismissed vide order dated 24.03.2023.
Being aggrieved, appeal was filed belatedly.
3 19-SA.245-25 & ors (Oral Jud).odt
6. Learned counsel for the appellant submits that delay of
03 months and 17 days is specifically explained in the
application contending that appellant is aged and ailing. She
was unable to file appeals within limitation and engaged an
attorney who was also busy with his private job and unable to
file appeals in time. It is submitted that the delay is marginal
and the Appellate Court committed error of jurisdiction in
rejecting the same. It is submitted that reply given to the
application is not specific. The learned Judge erred in holding
that appellant was very casual in filing application for
condonation of delay. It is submitted that pedantic approach is
adopted by Lower Appellate Court. If the delay is condoned,
no prejudice would be caused to the respondent.
7. Per contra, learned counsel Mr. Muthiyan submits that
application for condonation of delay lacks material particulars.
The attorney was busy in some private job cannot be a ground
to condone delay. It is submitted that application is not
supported by any medical papers or tangible evidence to
disclose the disability. It is further submitted that the
respondent is also being represented by a person who is older
than the applicant and as such age of 70 cannot be a ground in
itself to condone the delay. It is vehemently submitted that
4 19-SA.245-25 & ors (Oral Jud).odt
there is gross negligence on the part of the appellant.
Persistently, appellant has indulged into lapses because second
appeals were also filed belatedly. It is pointed out that she
could execute power of attorney within limitation of appeals.
It is submitted that hardship is caused to the respondent.
8. I have considered rival submissions of the parties. The
length of delay, the grounds pressed into service for
condonation of delay are common in both the appeals. The
reasons assigned for condonation of delay age and ailment of
the appellant. It reveals from record that she engaged attorney
by executing a document on 08.05.2023. She approached the
Appellate Forum with application for condonation of delay on
10.07.2023. There is no dispute that the date of judgment
mentioned in paragraph No.5 of the impugned order is
incorrectly mentioned to be 24.03.2024 instead of 24.03.2023.
9. The application of condonation of delay supported by
affidavit. No medical papers or oral evidence is adduced by
the applicant. The day-to-day explanation is not contemplated.
The reasons stated in paragraph No.3 of the applications
cannot be said to be very specific. The submissions of the
learned counsel for the respondent has some force because the
5 19-SA.245-25 & ors (Oral Jud).odt
reason that attorney was engaged in his private job, is not
appealing.
10. But in my view, in such a matter, the crucial question
would be as to whether it is pragmatic to reject the application
for condonation of delay of 03 months and 17 days. From the
application, reply and the reasons given in the impugned
orders no malafides attributable to the applicant are reflected.
No oblique motive has been pointed out for preferring the
appeals belatedly. A useful reference can be made to judgment
of Supreme Court in the matter of Ram Nath Sao @ Ram Nath
Sahu and others Vs. Gobardhan Sao And Others ; 2002 AIR
SCW 978.
11. The appellant before this Court has suffered decree
passed by the Trial Court. Appeal under Section 96 of the CPC
is a substantive statutory right. These appeals provided by
statute are on facts and law as well. It is a fit case in which the
learned Appellate Judge should have adopted a liberal
approach because it is only delay of 03 months and 17 days. I
am of the considered view that a pedantic approach has been
adopted by the learned Judge in rejecting application which
needs to be rectified.
6 19-SA.245-25 & ors (Oral Jud).odt
12. The submission of the learned counsel for the
respondent that the authorized person of the respondent is
older and ailing than appellant/applicant cannot be a ground
to conceive that the reasons assigned by the appellant are false.
The physical fitness of the person and the age cannot always
go hand in hand. That is a subjective. Appellant was required
to engage an attorney is indicative of the fact that though she
was of 70 years of age she is unable to look after some activity.
13. Learned counsel for the respondent has relied on the
judgment dated 15.03.2024 passed by Co-ordinate Bench in
Second Appeal No.73 of 2018. My attention is adverted to the
observations made in paragraph No.10 because in that matter
also delay was sought to be condoned on ailment without
placing any medical papers on record. The observations in
paragraph No.10 cannot be disputed. It is trite law that the
condonation of delay depends upon facts and circumstances of
a case. In that case, a delay of 04 years and 11 months 08 days
was sought to be condoned. As against that, in a case at hand,
we are considering delay of 03 months 17 days which is a
distinguishable feature. It is distinguishable on various facts
and therefore, I am of the considered view the course adopted
7 19-SA.245-25 & ors (Oral Jud).odt
by learned Co-ordinate Bench cannot be adopted in the present
case.
14. My attention is also adverted to the principles reiterated
in paragraph No.10 of the order that "the laws of limitation
though harsh are required to be applied with full rigour and
cannot be brushed aside on the ground of interest of justice
and it is not the duration of delay which is material but the
explanation tendered for the delay. A few days delay may not
be condoned in the absence of sufficient explanation whereas
substantial delay may be condoned." The principles cannot be
disputed but as I have already observed that considering facts
and circumstances in the present case, it would be very harsh
to refuse to condone the delay of 03 months and 17 days.
15. For the foregoing reasons, I find that impugned orders
passed in both the appeals are unsustainable. Both substantial
questions of law need to be answered in negative. Both appeals
succeed.
(i) Second appeals are allowed.
(ii) Impugned judgments and orders dated 01.08.2024
passed by Lower Appellate Court are quashed and
set aside.
8 19-SA.245-25 & ors (Oral Jud).odt
(iii) The delay of 03 months and 17 days in preferring
both the appeals stands condoned on cost of
Rs.7,000/- in each case to be paid to respondent
within a period of two (2) weeks from today
which shall be the condition precedent.
(iv) Appellant shall co-operate the Appellate Court in
expeditious disposal of the appeals.
(v) Both parties shall appear before the Appellate
Court on 03.10.2025.
(vi) Civil applications are disposed of accordingly.
(SHAILESH P. BRAHME, J.)
...
vmk/-
