The court rejected an application to restore a civil application for the condonation of delay regarding a second appeal. The cause shown for the delay of over four years was found insufficient, resulting in the rejection of the application and the consequent disposal of the appeal and related petitions.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.1297 OF 2007
IN
CIVIL APPLICATION NO.833 OF 2002
IN
SECOND APPEAL ST.NO.28659 OF 2002
Nivrutti Dhondiba Shinde
(since deceased) through LRs.
Mrs.Parvatibai N.Shinde & Ors .. Applicants.
Vs.
Sadashiv Rambhau Kakade & Ors. .. Respondents.
Mr.Prathmesh Bhargude i/b Sugandh Deshmukh for the
applicants.
None for the respondents.
CORAM : D.B.BHOSALE, J.
DATED : 4TH OCTOBER, 2007.
P.C.:
. Heard learned counsel for the applicants.
2. By this civil application the applicants are
seeking restoration of civil application no.833 of
2002 in second appeal (St.) No.28659 of 2002. There
is delay of more than four years in filing this
application.
3. Civil application no.833 of 2002 was filed
for condonation of delay in filing the second appeal.
The second appeal was filed against concurrent
judgments of the courts below by which the suit filed
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by the respondent-plaintiff was decreed. The main
relief in the suit was in nature of permanent
injunction. It would be advantageous to reproduce
the operative part of the judgment of the trial Court
which has been confirmed by the appeal court in the
appeal. The operative part of the order read thus:
"1. The suit is hereby partly decreed
with costs.
2. The prayer or the declaration that
the judgment and decree passed in RCS
No.354/69 is not binding of the plaintiff is
hereby rejected.
3. The prayer regarding declaration that
the suit properties are declared and allotted
to the share of the defendant no.1 to 3 is
hereby rejected.
4. The defendant no.4 is hereby
permanently restrained from seeking
possession from the plaintiff of the suit
lands on the basis of precept or partition
till its correction to the effect that the
suit properties to be allotted to the share
of the defendant no.4 should be shown as
allotted to the share of the defendant no.1
to 3 by moving the competent rev. authority
in pending execution proceedings No.588/1974.
5. A decree be drawn up accordingly."
4. Mr.Bhargude, learned counsel for the
applicants took me through paragraphs 3 to 8 of the
civil application and submitted that the delay in
filing this application has been sufficiently
explained by the applicants. From perusal of the
contents of aforesaid paragraphs, in my opinion, the
cause shown is not sufficient. Taking overall facts
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and circumstances of the case in view and the nature
of decree the prayer for condonation of delay subject
to payment of cost also deserves to be rejected. In
the circumstances the civil application stands
rejected. Consequently, the other civil
applications, if any, and the second appeal also
stands disposed of.
(D.B.BHOSALE, J.)
2 issues framed by the court
Whether the cause shown for the excessive delay of over four years in filing the civil application for restoration is sufficient to condone the delay.
Whether the applications for restoration of the civil application and the second appeal can be allowed despite the excessive delay.
Mrs. Parvatibai N. Shinde & Ors.
Sadashiv Rambhau Kakade & Ors.
D.B. Bhosale
As recorded by the court registry
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