Allowed

Bodhraj Maruti Lungase and Ors. v. Chimabai Arjun Dhumal and Ors.

Bombay HC29 Mar 2005WP/5351/2004

Case brief

AI extract

What is this about?

The High Court allowed a Writ Petition setting aside an order rejecting condonation of delay in filing an appeal. The High Court directed the lower appellate court to hear the appeal on merits within one month and ordered deposit of court fees.

What did the court decide?

Impugned order set aside; lower appellate court directed to hear appeal within one month; petitioners directed to deposit additional costs of Rs. 6,000/-.

Bodhraj Maruti Lungase and Ors. Vs Chimabai… — Civil Procedure and Limitation | Bombay HC (2005)

¶1

: 1 :

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO.5351 OF 2004

¶5

Bodhraj Maruti Lungase & Ors. ... Petitioners Vs. Chimabai Arjun Dhuman & Ors. ... Respondents Mr. Surel S. Shah for the petitioners. Mr. A.P. Kulkarni for respondent 1. Mr. I.M. Khairadi for respondents 3, 4 and 5.

¶6

CORAM: SMT. RANJANA DESAI, J.

¶7

DATED: 29TH MARCH, 2005.

¶8

P.C. :-

¶9

1.	In this	writ petiti	o	n, orde	r		dated	2	9/1/2	004	passed
by	the Second	Additio	n	al Distr	ic	t	Judge,			Solapur,	on
Civil	Misc.	Application		No.139		of	1999		is	ch	allenged.
The	application w	as filed		by or	ig	inal	defen	d	ants	1,	2, 3
and	7 for	condonation	o	f delay		in	filin	g		the	appeal
against	the judgment	and	d	ecree	da	ted	23/4	/1	999	passed	by
the J	oint Civil	Judge, Ju	ni	or Di	vi	sion	, Mh	a	da,	in	Regular
Suit	No.303 of	1993.	I	t appear	s		from	th	e	impugned	order
that	there is	36 day	s	’ delay		in	filin	g		the	appeal.
However,	the	learned co	u	nsel for			the		petiti	oners	says
that	there is	only 22		days’ de	la	y.	Th	e	a	pplication	is
rejected	on the	ground t	h	at it	c	ann	ot be		said	that	the
defendants	did not	have the		knowle	dg	e	of	p	endin	g suit	and

¶10

: 2 :

¶11

proceedings of hearing of the suit on various dates. It

¶12

is observed that the petitioners have failed to show

¶13

just, reasonable and good cause for condoning the delay.

¶14

I have heard the learned counsel appearing for the

¶15

petitioners and the learned counsel appearing for the

¶16

respondents.

¶17

3. Tho	ugh the application was filed as far as back	as
on 29/6/1999,	the same was disposed of by the court	on
29/1/2004.	The defendants ought to have moved the	court
earlier.	While it may be true that the defendants	have
not prose	cuted the suit with due diligence and care,	in
my opini	on, interest of justice require that the	lower
appellate co	urt should hear the appeal on merit.	A
direction	needs to be given to the lower appellate	court
to hear	and dispose of the instant appeal within a	time
frame. I	t appears that on 29/6/2004, Justice	A.M.
Khanwilkar	had issued notice before admission to	the
respondents.	However, the learned judge has	observed
that the	petitioners should deposit a sum of	Rs.6,000/-
within three	weeks from the date of the said	order
failing wh	ich the petition was to stand dismissed	for
non-prosecution	without further reference to the	court.
It was	further observed that if the petitioners	deposit
the costs	, notices be issued to the r	espondents
indicating	that they will be entitled for costs of	the
proceedings	equally between them, which are directed	to

¶18

: 3 :

¶19

be depo	sited u	nder	the	said	orde	r,	on	enteri	ng	appearance
before	this c	ourt.		I am	inform	ed	that	accord	ingly,	the
petitioners	have		depos	ited a	sum	of	Rs.	6,000/-	in	this
court.	In	the	facts	and	circumst	ances	of	the	case,	the
petitioners	will		have	to	be	dire	cted	t	o	deposit
additional	amount		of	Rs.6,000/-	as	and	by	way	of	costs

¶20

within a period of two weeks from today. Hence, I pass

¶21

the following order.

¶22

4.	The	ord	er dated 29/1/200	4 pas	sed	by the	Second
Additiona	l	Distric	t Judge, Solapur	, is	set	aside.	The
lower		appellate	court i.e.	the	Dis	trict Judge,	Solapur,
is	directed		to hear and dispos	e of	the	appeal filed	by
the	petiti	oners	herein within a	period	of	one month	from
the	date	of	receipt of this	order	by	him.	It is
clarified		that	this court has	not	express	ed any	opinion
on	the	merits	of the case.		The	petitioners	should
deposit	an		amount of Rs.6,000/-	in	this	court within	a
period	of	tw	o weeks from today	.	On	such deposit	being
made,	the	origi	nal plaintiff will	be	e	ntitled to	withdraw
the	said	amoun	t. Needless to	say t	hat	this shall be	in
addition	to	his	share in the	earlier	a	mount of	Rs.6,000/-
deposited		by	the petitioners in	pu	rsuance	of order	dated
29/6/2004		passed	by Justice A.M.		Khan	wilkar.	Needless
to	say	that	till such time as	the	appeal	is heard	and

¶23

finally deposited of, the status-quo order passed by

¶24

Justice A.M. Khanwilkar to continue.

¶25

: 4 :

¶26

Parties to appear before the lower appellate court on 11/4/2005. 6. No fresh notice to the respondents is necessary in view of this order. 7. All concerned to act on the authenticated copy of this order.

¶27

(SMT. RANJANA DESAI, J.)

Bodhraj Maruti Lungase and Ors. v. Chimabai Arjun Dhumal and Ors.

Case brief

What is this about?

What did the court decide?

Bodhraj Maruti Lungase and Ors. v. Chimabai Arjun Dhumal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Hanmant Narayan Mane (Decd.)by Lrs. Vs Krushnaji Gundo Tahasildar (Decd.) by Lrs.

Hanmant Narayan Mane (Decd.)by Lrs. Vs Krushnaji Gundo Tahasildar (Decd.) by Lrs.

Zarina Shaikh Abdul Rashid Vs Aziz Hyder Ali Talwaria and Ors.

Bodhraj Maruti Lungase and Ors. Vs Chimabai Arjun Dhumal and Ors.

Dnyaneshwar Marutrao Bartakke (Desd) Lrs. Vs Rajesh Chadnrakant Thakar

Dnyaneshwar Marutrao Bartakke (Decd.) by Heirs. Vs Rajesh Chandrakant Thakar and Anr.