Writ petition dismissed summarily against the rejection of an application for condonation of delay in filing an appeal against a decree, as the petitioner's interest was adequately represented by his natural guardian.
Writ petition dismissed summarily.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE
WRIT PETITION NO. 3187 OF 2007
Baburao Tatoba Medhe.... Petitioner
versus
Kedari Balnath Dawari
(since deceased)
L.Rs. Smt. Kuktabai Kedari Dawari
and others. ...... Respondent.
Shri N.J.Patil for the petitioner
Shri Amit Borkar for Respondent no.2
CORAM; A.P. DESHPANDE, J.
DATED; 10TH OCTOBER, 2007
P.C.;
1. The Plaintiff instituted a suit for redemption of
mortgage and for possession against the defendants.
The present petitioner Baburao was a minor when the
suit was instituted and he was impleaded as defendant
no.2 through the natural guardian mother. The regular
Civil Suit No.356/67 came to be decreed after about 34
years on 22-11-2005. Record reveals that the issue of
tenancy was raised by the defendant and thus the
tenancy issue was referred to the Tenancy Authority
under the Tenancy Act. It is the case of the present
petitioner that after he attained majority he joined
defence service in the year 1972 and came to be
discharged from service in the year 1993. Thereafter
the petitioner settled along with his family at his
native place. As mentioned hereinabove the suit came
to be decreed on 22-11-2005. Belatedly the present
petitioner filed an appeal and as there was a delay of
about 225 days, an application was moved under section
5 of the Limitation Act, seeking condonation of delay.
The rejection of the said application has given rise
to the filing of the instant writ petition.
2. In the application the petitioner had contended
that he was not aware about the pendency of the suit
and he was not informed by his family members about
the suit being decreed. The evidence of the parties
was recorded before the first Appellate Court and the
first Appellate Court has recorded a finding that the
petitioner/applicant has failed to show sufficient
cause for condonation of delay in filing of the
appeal. It appears that the petitioner contended
before the first Appellate Court that after attaining
majority the petitioner was never separately noticed.
The court has held that there is no such requirement
of law. Impugned order also goes to observe that the
petitioner had taken active part in the tenancy
proceeding which were conducted on reference of the
tenancy issue by the Civil Court to the Tenancy
Authorities. Perusal of the record reveals that the
interest of the petitioner was taken care of and
protected by his mother as a natural guardian and the
suit was contested for a long long period of 34 years.
Having found that the interest of the petitioner was
properly represented in the suit and that there is no
justification for condonation of delay, the impugned
order has been passed. The first Appellate Court
takes a possible view of the matter which does not
require any interference at the hands of this court.
Hence writ petition is dismissed summarily.
2 issues framed by the court
Whether sufficient cause on the ground of lack of notice justifies condonation of delay in filing an appeal against a decree?
Whether the interest of a petitioner who was represented by a natural guardian during a long-pending suit justifies interference by the High Court in a delay application?
Baburao Tatoba Medhe
Kedari Balnath Dawari L.Rs.
A.P. Deshpande
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court