High Court
Legal Reasoning
1 19-SA.245-25 & ors (Oral Jud).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.245 OF 2025WITH CIVIL APPLICATION NO. 1832 OF 2025 IN SA/245/2025WITH SECOND APPEAL NO. 246 OF 2025 WITH CIVIL APPLICATION NO. 1816 OF 2025 IN SA/246/2025Bhartidevi Shivraj Baldava,Age: 71 yrs, Occu.: Household, R/o. Diwan Devdi, Aurangabad,Through her G.P.. ΑJagdish Balkishan Lohiya. Age: 53 yrs, Occu.: Pvt. Service, R/o. Gulmandi, Aurangabad.…APPELLANT (Ori. Defendant)VERSUSAurangabad Textile & Apparel Parks Ltd., Having Registered Office At 63, T. B. Kadam Marg, Mumbai-400 003Factory 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 :20.09.2025ORAL JUDGMENT :- 1.Heard both sides. 2 19-SA.245-25 & ors (Oral Jud).odt2.Both appeals can be decided by common judgment. Itwas already indicated in previous order dated 07.07.2025 thatappeals would be decided finally at the admission stage. Thesubstantial questions of law were also formulated.Accordingly, both learned counsels addressed on thesubstantial questions of law. 3.Facts in both second appeals are identical. The length ofdelay is 03 months and 17 days in preferring appeals underSection 96 of the Civil Procedure Code before Lower AppellateCourt which is referred to be condoned by distinct orderspassed on 13.07.2023. Being aggrieved, second appeals arepreferred. 4.In Second Appeal No.245 of 2025, appellant is originaldefendant who suffered decree of injunction in Regular CivilSuit No.590 of 2016 on 24.03.2023. Being aggrieved, appealunder Section 96 was preferred belatedly. 5.In Second Appeal 246 of 2025, appellant is originalplaintiff who had filed Regular Civil Suit No.465 of 2017 forinjunction. It was dismissed vide order dated 24.03.2023.Being aggrieved, appeal was filed belatedly.
Legal Reasoning
3 19-SA.245-25 & ors (Oral Jud).odt6.Learned counsel for the appellant submits that delay of03 months and 17 days is specifically explained in theapplication contending that appellant is aged and ailing. Shewas unable to file appeals within limitation and engaged anattorney who was also busy with his private job and unable tofile appeals in time. It is submitted that the delay is marginaland the Appellate Court committed error of jurisdiction inrejecting the same. It is submitted that reply given to theapplication is not specific. The learned Judge erred in holdingthat appellant was very casual in filing application forcondonation of delay. It is submitted that pedantic approach isadopted 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 thatapplication for condonation of delay lacks material particulars.The attorney was busy in some private job cannot be a groundto condone delay. It is submitted that application is notsupported by any medical papers or tangible evidence todisclose the disability. It is further submitted that therespondent is also being represented by a person who is olderthan the applicant and as such age of 70 cannot be a ground initself to condone the delay. It is vehemently submitted that 4 19-SA.245-25 & ors (Oral Jud).odtthere is gross negligence on the part of the appellant.Persistently, appellant has indulged into lapses because secondappeals were also filed belatedly. It is pointed out that shecould 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. Thelength of delay, the grounds pressed into service forcondonation of delay are common in both the appeals. Thereasons assigned for condonation of delay age and ailment ofthe appellant. It reveals from record that she engaged attorneyby executing a document on 08.05.2023. She approached theAppellate Forum with application for condonation of delay on10.07.2023. There is no dispute that the date of judgmentmentioned in paragraph No.5 of the impugned order isincorrectly mentioned to be 24.03.2024 instead of 24.03.2023.9.The application of condonation of delay supported byaffidavit. No medical papers or oral evidence is adduced bythe applicant. The day-to-day explanation is not contemplated.The reasons stated in paragraph No.3 of the applicationscannot be said to be very specific. The submissions of thelearned counsel for the respondent has some force because the 5 19-SA.245-25 & ors (Oral Jud).odtreason that attorney was engaged in his private job, is notappealing. 10.But in my view, in such a matter, the crucial questionwould be as to whether it is pragmatic to reject the applicationfor condonation of delay of 03 months and 17 days. From theapplication, reply and the reasons given in the impugnedorders no malafides attributable to the applicant are reflected.No oblique motive has been pointed out for preferring theappeals belatedly. A useful reference can be made to judgmentof Supreme Court in the matter of Ram Nath Sao @ Ram NathSahu and others Vs. Gobardhan Sao And Others ; 2002 AIRSCW 978. 11.The appellant before this Court has suffered decreepassed by the Trial Court. Appeal under Section 96 of the CPCis a substantive statutory right. These appeals provided bystatute are on facts and law as well. It is a fit case in which thelearned Appellate Judge should have adopted a liberalapproach because it is only delay of 03 months and 17 days. Iam of the considered view that a pedantic approach has beenadopted by the learned Judge in rejecting application whichneeds to be rectified. 6 19-SA.245-25 & ors (Oral Jud).odt12.The submission of the learned counsel for therespondent that the authorized person of the respondent isolder and ailing than appellant/applicant cannot be a groundto conceive that the reasons assigned by the appellant are false.The physical fitness of the person and the age cannot alwaysgo hand in hand. That is a subjective. Appellant was requiredto engage an attorney is indicative of the fact that though shewas of 70 years of age she is unable to look after some activity.13.Learned counsel for the respondent has relied on thejudgment dated 15.03.2024 passed by Co-ordinate Bench inSecond Appeal No.73 of 2018. My attention is adverted to theobservations made in paragraph No.10 because in that matteralso delay was sought to be condoned on ailment withoutplacing any medical papers on record. The observations inparagraph No.10 cannot be disputed. It is trite law that thecondonation of delay depends upon facts and circumstances ofa case. In that case, a delay of 04 years and 11 months 08 dayswas sought to be condoned. As against that, in a case at hand,we are considering delay of 03 months 17 days which is adistinguishable feature. It is distinguishable on various factsand therefore, I am of the considered view the course adopted
Decision
7 19-SA.245-25 & ors (Oral Jud).odtby learned Co-ordinate Bench cannot be adopted in the presentcase. 14.My attention is also adverted to the principles reiteratedin paragraph No.10 of the order that “the laws of limitationthough harsh are required to be applied with full rigour andcannot be brushed aside on the ground of interest of justiceand it is not the duration of delay which is material but theexplanation tendered for the delay. A few days delay may notbe condoned in the absence of sufficient explanation whereassubstantial delay may be condoned.” The principles cannot bedisputed but as I have already observed that considering factsand circumstances in the present case, it would be very harshto refuse to condone the delay of 03 months and 17 days. 15.For the foregoing reasons, I find that impugned orderspassed in both the appeals are unsustainable. Both substantialquestions of law need to be answered in negative. Both appealssucceed.(i)Second appeals are allowed. (ii)Impugned judgments and orders dated 01.08.2024passed by Lower Appellate Court are quashed andset aside. 8 19-SA.245-25 & ors (Oral Jud).odt(iii)The delay of 03 months and 17 days in preferringboth the appeals stands condoned on cost ofRs.7,000/- in each case to be paid to respondentwithin a period of two (2) weeks from todaywhich shall be the condition precedent. (iv)Appellant shall co-operate the Appellate Court inexpeditious disposal of the appeals.(v)Both parties shall appear before the AppellateCourt on 03.10.2025. (vi)Civil applications are disposed of accordingly. (SHAILESH P. BRAHME, J.)...vmk/-