High Court
Legal Reasoning
( 1 ) ca 10950.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD902 CIVIL APPLICATION NO. 10950 OF 2023 IN SECOND APPEAL NO. 251 OF 2023ANJALI RAMAKANT ATTARDEVERSUSRAVINDRA ATMARAM SONAWANE AND OTHERS…..Advocate for Applicant : Mr. Tripathi Sushilkumar H.Advocate for Respondents : Mr. Bhandari Anand P.…..CORAM : Y. G. KHOBRAGADE, J.DATE :04.04.2024ORDER :-1.Heard both the sides at length.2.Besides oral arguments, both the parties have tendered theirwritten notes of arguments.3.Having regard to the submissions canvassed on behalf of bothsides, I have gone through the record. On face of record, it prima facieappears that, the applicant has filed present composite application forcondonation of delay of 593 days caused in bringing legal heirs on record ofdeceased Respondent No. 8, setting aside of abatement of appeal and soughtpermission to bring legal heirs of deceased respondent No.8 on record. ( 2 ) ca 10950.234.Learned counsel appearing for the Applicant submits that, therespondent/plaintiff had filed Special Civil Suit No. 62/2001 for specificperformance of contract. On 02.05.2015, said suit was decreed against thepresent Appellant/defendant. Being aggrieved by said judgment and decree,the present applicant/appellant have preferred an appeal under Section 96 ofCivil Procedure Code before the learned First Appellate Court, however, whilepreferring the appeal delay of 2 years 1 month and 20 days was caused.Therefore, the appellant filed Civil M. A. No.250/2017 for condonation ofdelay before the First Appellate Court. However, on 10.04.2023, the learnedDistrict Judge-5, Jalgaon refused to condone the delay. Therefore, theappellant/original defendant preferred present appeal u/s 100 of CivilProcedure Code. On 02.05.2023, this Court issued notice to the non-applicants/respondents, however, notice of respondent No.8 returnedunserved with the endorsement that, the respondent No.8-RukminibaiDattatray Rade has died on 17.10.2021.5.The learned counsel for the applicant has submits that, thedeceased-respondent No. 8 was residing at village Bhadli, Tq. & Dist. Jalgaonand the applicant is residing at Indore, Madhya Pradesh and was not awareabout the death of respondent No.8, but after receipt of Bailiff report in themonth of June-2023, the applicant came to know about the death of
Legal Reasoning
( 3 ) ca 10950.23respondent No.8. Thereafter, the names of legal heirs of deceased-respondentNo.8 were gathered and filed present application for which delay of 593 daysis caused, which is bonafide and substantial, hence, prayed for condonation ofdelay as well as setting aside of abatement of appeal and further soughtpermission to bring the legal heirs of deceased-respondent No.8 on record.6.In support of these submissions the learned counsel appearing forthe applicants placed reliance on the following cases :i)Perumon Bhagvathy Devaswom Perinadu Village V/s. Bhargavi Amma(Dead) by L.Rs and Ors.,; AIR 2009 SC (Supp) 886.ii)Narhari s/o Shrawan Moon (now deceased) through L.Rs and Ors V/s.Silas s/o Kannobaji Punwatkar & Ors.; 2022 (3) Mh.L.J. 788.iii)Yashwant Hariparit (deceased) through legal heir Sandip BalkrishnaParit & Ors. V/s. Sunita Ashok Bhandare & Ors.; (2020) 2 Mh.L.J. 191.iv)Unreported order of this Court dated 07.03.2024 passed in CivilApplication No.2636/2024 in Second Appeal No.890/2016. (Sandhya SantoshKyatamwar L.Rs. Santosh Sayanna Kyatamwar & Ors. V/s. Yeshwant DattatryaDipak and Ors.)v) Sonerao Sadashivrao Patil and Anr. V/s. Godawaribai LaxmansinghGahirewar and Ors.; AIR 1999 BOMBAY 235, 7.Per contra, learned counsel appearing for the non-applicantsstrongly resisted the application and put-forth following grounds: ( 4 ) ca 10950.23a. Appellant had the knowledge of passing of Judgment and Decree.b. Appellant had been to Advocate of High Court. However, neither thename of said Advocate is disclosed, nor any witness is examined on said point.c. The provisions of Maharashtra Civil Courts Act were amended on1.09.2015, the Application for condonation of delay is filed in the month ofJuly 2017. For the intervening period, there is no explanation offered.d. The Appellant is having knowledge of all the proceedings. Suppressingthe Special Civil Suit No.62/2001 filed by the Respondents, the appellant haswisely filed Regular Civil Suit No.11/2009 before the Civil Court, Jalgaonwithout impleading the Respondents Nos. 1 and 2.e. Appellant has participated in the proceedings before Executing Courtand also in the suit through the same Advocate.f. The delay caused is intentional. No documents supporting the reasonsmentioned in Application were produced.8.Further, the learned counsel for the non-applicant In support ofhis submissions has relied on the following cases :i).. Ramchandran V/s State of Kerala and another, reported in AIRΡΚ1998 SC 2276.ii)Maniben Devraj Shaha V/s Municipal Corporation Mumbai, reported inAIR 2012 SC 1629. 9.It is submitted that, the applicant is a 55 year old lady residing at ( 5 ) ca 10950.23Indore, Madhya Pradesh and litigating the matter at Jalgaon in respect of thelanded property. The applicant fairly stated that, she has preferred an appealchallenging the judgment and order darted 10.04.2023 passed by the learnedDistrict Judge-5, Jalgaon in Civil M. A. No. 250/2017, whereby her prayer forcondonation of delay in filing the appeal has been rejected. This Court issuednotice and in pursuance of the Bailiff’s report, first time she came to knowthat, the respondent No.8-Rukminibai Dattatray Rade has expired on17.10.2021. Thereafter, the applicant collected death certificate of therespondent No. 8 as well as names of legal heirs and thereafter filed thepresent application for which the delay of 593 has occurred.10.In the case of Perumon Bhagvathy Devaswom Perinadu Villagecited (supra) the Hon’ble Supreme Court laid down principles forconsideration of applications for setting aside of abatement, condonation ofdelay which are as under:“(i) The words "sufficient cause" in section 5 of Limitation Actshould receive a liberal construction so as to advance substantialjustice, when the delay is not on account of any dilatory tactics, wantof bona fides, deliberate inaction or negligence on the part of theappellant.(ii) In considering reasons for condonation of delay, Courts areliberal with reference to applications for setting aside abatement,than other cases. Courts tend to set aside abatement and decidematter on merits, rather than terminate appeal on ground ofabatement. ( 6 ) ca 10950.23(iii) Decisive factor in condonation of delay, is not the length ofdelay, but sufficiency of a satisfactory explanation.(iv) Extent or degree of leniency to be shown by a Court dependson nature of application and facts and circumstances of the case. Forexample, Courts view delays in making applications in a pendingappeal more leniently than delays in institution of an appeal. Courtsview applications relating to lawyer's lapses more leniently thanapplications relating to litigant's lapses.(v) Want of 'diligence' or 'inaction' can be attributed to anappellant only when something required to be done by him, is notdone. When nothing is required to be done, Courts do not expectappellant to be diligent. Where an appeal is admitted by High Courtand is not expected to be listed for final hearing for a few years, anappellant is not expected to visit Court or his lawyer every fewweeks to ascertain position nor keep checking whether contestingrespondent is alive. He merely awaits the call or information fromhis counsel about the listing of the appeal.”11.In case of Sonerao Sadashivrao Patil, cited supra, Co-ordinatebench of this court has held that, the Court is having discretionary power tocondone the delay and discretionary power should be exercised to advancesubstantial justice.12.No doubt the learned counsel for the non-applicants relied onvarious case laws, however, nothing been brought on record as to how theapplicant was negligent in filing the application for condonation of delay andsetting aside of abatement as against respondent No.8. It trite settled principleof law that, if the delay is explained satisfactorily, the court should adopt theliberal approach and condone the delay by taking into consideration guide ( 7 ) ca 10950.23lines laid down in case of Perumon Bhagvathy Devaswom Perinadu Villagecited (supra). Therefore, considering the grounds set out in the application aswell as facts and circumstances of the case, I am inclined to grant the presentapplication and proceed to pass the following order:ORDER:i)The civil application is allowed.ii)The delay of 593 days caused in filing the application for bringing the legal heirs of respondent No.8 on record is hereby condoned.iii)The abatement is set aside as against respondent No.8.iv)The applicant is hereby permitted to bring the legal heirs of deceased-respondent No.8 on record.v)Necessary amendment be carried out within a period two weeks from today.vi)Place the appeal for further consideration on 29.04.2024. Interim reliefgranted earlier, if any, to continue till the next date. [Y. G. KHOBRAGADE, J.]mub