Laxman Dagdu Birajdar v. Shantabai Maruti Birajdar

901.SA-453-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 453 OF 2025WITHCIVIL APPLICATION NO. 13841 OF 20251. Laxman Dagdu Birajdar2. Mallappa Dagdu Birajdar3. Anubai Jyotiba Belle Versus1. Shantabai Maruti Birajdar2. Zakir Maula Batkeri3. Sandip Wishwanath Sutar****** Advocate for the Appellants : Mr. Apparao Prakash Yenegure* Advocate for the Respondent No. 1 : Mr. Ganesh J. Kore* Advocate for the Respondent No. 3 : Mrs. Pooja K. Apache***** CORAM : MEHROZ K. PATHAN, J. DATE : 5th FEBRUARY 2026 O R D E R :1.The Appellants have filed the present appeal challengingthe judgment dated 01.12.2025 passed by the District Judge-1,whereby MCA No.50/2023 filed by the Appellants for condonationof delay was dismissed. The Appellants had prayed forcondonation of delay of 10 years and 3 months in filing thesecond appeal. 2.The learned Counsel for the Appellants submits that[1]

901.SA-453-2025.odtDefendant No.1 was the father of the Appellants, and after hisdeath, Defendant Nos. 1A to 1D were added as parties to thesuit. However, in that suit, the Defendants (present Appellants)were not served with summons, and consequently, an ex partedecree was passed against them. It is contended that the suitproperty was not ancestral property of the Plaintiff but wasrecorded in the name of one Laxmibai, who died issueless. Afterher death, the property devolved upon her stepson, the father ofthe Appellants, who was the original Defendant No.1. ThePlaintiffs had no right in the suit property, yet the learned trialCourt granted them half share in the property. The delay in filingthe appeal is neither intentional nor deliberate but has occurreddue to the aforesaid circumstances. If the delay of 10 years, 3months, and 28 days is not condoned, the Appellant-Defendantswill suffer irreparable loss in the event the impugned decree isexecuted. 3.It is further submitted by the learned Counsel for theAppellants that the First Appellate Court failed to take intoconsideration the circumstances in which the delay was causedand rejected the application for condonation of delay withoutassigning cogent reasons. The impugned order, therefore, needsinterference by this Court in the present Second Appeal. TheAppellants pray for setting aside the order of the Appellate Court,allowing the appeal, and condoning the delay in filing the FirstAppeal. 4.As against this, the learned Counsel for Respondent No.1[2]

901.SA-453-2025.odtstrongly objected to the appeal on the ground that the suitsummons were served upon Defendant Nos. 1A to 1C, whoappeared through their advocates but failed to file a writtenstatement, and therefore the suit proceeded uncontested againstthem. Appellant Laxman was already on record as DefendantNo.1B before passing of the decree. Appellant Mallappa was onrecord as Defendant No.1C, and Appellant Anubai was on recordas Defendant No.1D. Defendant No.1D Anubai failed to appeardespite service of summons, and the suit proceeded ex parteagainst her. Defendant No.2 Zaker was the subsequent purchaserof half portion belonging to Dagdu (Defendant No.1 herein).Defendant No.2 Zaker sold the said property to Defendant No.3Sandip, and they too were added as Defendants in the suit.Thus, all the Defendants were served. Despite appearancethrough advocates, Defendant Nos. 1A to 1C failed to file anywritten statement, and the suit went uncontested. DefendantNos.1 and 2 failed to appear despite service and therefore cannotnow claim lack of knowledge about the proceedings before thetrial Court. The delay of 10 years, 3 months, and 28 days isinordinate. No sufficient reasons were given in the applicationfiled before the First Appellate Court (MCA No.50/2023). As such,the Appellate Court rightly rejected the application forcondonation of delay, having exercised its discretion underSection 5 of the Limitation Act.5.After hearing the learned Counsels for Appellants andRespondents and after going through the record followingsubstantial questions of law appears to be involved :[3]

901.SA-453-2025.odt(a)Whether the learned First Appellate Court has erred inholding that, the Appellants failed to show the sufficient cause forcondonation of delay to file the appeal particularly when theevidence led by the Appellants clearly shows that they havegiven the just and proper reasons to condone the delay?(b)Whether the given facts and circumstances it can be saidthat the so called services of summons defendants no.1B and 1Csaid to be legal and valid service particularly when the saiddefendants were minors at the time of services?6.The learned First Appellate Court dealt in detail with therecord of RCS No.44/2005 and found that, after the death ofDefendant No.1 on 23.02.2024, Defendant Nos. 1A to 1D wereadded as legal heirs. Defendant Nos. 1A to 1C appeared in thesuit through Advocate Rajesh, while Defendant No.1D failed toappear. Hence, the suit proceeded ex parte against her. Thus, thecontention raised by Defendant Nos. 1B and 1C, who areAppellant Nos. 1 and 2 herein, is misconceived, as the recordclearly shows that they had appeared through Advocate Rajesh. .Insofar as Appellant No.3/Anubai, who was the originalDefendant No.1D, is concerned, the suit proceeded ex parteagainst her. Defendant No.1D, that is Appellant No.3 herein, hasfailed to prove that she was not served with suit summons. Nodocumentary evidence has been brought on record by theDefendant to that effect. 7.It was further observed that the Defendants were shown asmajors in age in the amended plaint, and the plea that theAppellants were minors at the time of death of their father,[4]

901.SA-453-2025.odtDefendant No.1, during the pendency of the suit, is unsupportedby any pleading to that effect in the application filed by theAppellants under Section 5 of the Limitation Act for condonationof delay in filing the First Appeal. 8.I have gone through MCA No.50/2023 filed by theAppellants, which does not state that the Appellants were minorsat the time of the death of their father, nor when they wereimpleaded in the civil suit as legal heirs of Defendant No.1 onrecord. In the absence of any such pleading in the application forcondonation of delay, the First Appellate Court has rightlyrejected the application, recording a finding that the delay of 10years, 3 months, and 28 days is inordinate and that theAppellants have failed to show any sufficient cause forcondonation of such inordinate delay.9.Thus, for the aforesaid reasons recorded hereinbefore, boththe questions of law (a) and (b) stand answered. 10.The Hon’ble Supreme Court in the recent judgment in thecase of Shivamma (Dead) by L.Rs. Vs. Karnataka Housing Boardand others reported in 2025 LiveLaw (SC) 899, was pleased tohold as under : 147. The expression “may be admitted” vests in the court a discretion,the exercise of which is pre-conditioned to the proof of a “sufficientcause” for the failure to file the appeal or application, as the case maybe, within the prescribed period of limitation. It enables a court to eitheradmit or reject any appeal or application, for being barred by limitation,even if “sufficient cause” is shown to its satisfaction. The idea behindvesting the courts with such discretion is to ensure that the power tocondone any delay in the filing of an appeal or application, as the case[5]

901.SA-453-2025.odtmay be, is exercised only to advance substantial justice, where noprejudice or injustice would be meted from such delay being condoned.Condonation of delay is not a matter of right but a discretion of thecourt. 167.Once, the material on record lend support to the view arrived atby the court below, the enquiry of the appellate court into the materialon record ends. Thereafter, what remains to be seen is only the exerciseof discretion by the court below, which warrants a careful and delicateapproach from the appellate court. This is because acceptance of theexplanation as a sufficient cause is the result of a positive exercise ofdiscretion and normally the appellate court should not disturb suchexercise of discretion, unless the exercise of discretion was on whollywaterable grounds or arbitrary or perverse. 262. …....We are at pains to reiterate this everlasting trend, and put allthe High Courts to notice, not to reopen matters with inordinate delay,until sufficient cause exists, as by doing so the courts only add insult tothe injury, more particularly in appeals under Section 100 of the CPC,wherein its jurisdiction is already limited to questions of law. 11.It is well-settled law that the powers under Section 100CPC can be exercised only to evaluate a substantial question oflaw, if found to be involved in the Second Appeal, without re-appreciating the findings of fact. Thus, no other substantialquestion of law is involved in the present Second Appeal. Hence,the appeal is devoid of merit and is dismissed with costs. CivilApplication is also disposed of. [ MEHROZ K. PATHAN ] JUDGENajeeb..[6]