Dismissed

Dinkar Vithoba Shinde and Anr. v. Vishnu Vithoba Shinde and Ors.

Bombay HC5 May 2010CA/6552/2010

Case brief

AI extract

What is this about?

Court dismissed Civil Application for condonation of an 2890 days delay in filing Second Appeal in a partition suit, finding the abnormal delay unjustifiable despite medical and family reasons, noting all parties are elderly.

What did the court decide?

Civil Application for condonation of delay dismissed; Civil Application No. 6553 of 2010 disposed of as it did not survive.

1.Heard Adv. Shri Y.V. Kakade for the applicant. This is an application for condonation of delay of 2890 days in filing the Second Appeal. The present applicants are original defendant Nos. 1 and 5. The suit was for partition, filed by the plaintiff in the year 1991. The suit came to be decided on 21.08.1995. As against the same present applicants filed Regular Civil Appeal No. 320 of 1995 in the District Court, Ahmednagar, which came to be decided on 12.02.2002 and as stated by the learned advocate for the applicant, two of the properties were held to be self acquired and not liable for partition. To that extent the

first appeal was allowed but the decree for partition of remaining land was confirmed. As against the same the Second Appeal is sought to be filed after the notice of execution was served on the applicants.

2.The main reasons given by the applicant are in paras 10 to 15 of the application and they are mainly regarding developments in the family of the applicants pending the appeal in the District Court and thereafter. The reasons given in paras 10 and 12 regarding what had occurred during pendency of the first appeal are also not relevant for consideration of delay.

3.It is stated in para 12 of the application that after the decision in the District Court on 12.02.2002, certified copies were applied on 07.08.2003 and the same were collected on 16.08.2003. So, we can consider the explanation for delay after 16.08.2003. It is stated that applicant No. 1 was taking psychological treatment on 22.08.2005, 26.04.2006. It is also

stated that on 30.12.2003 the daughter of the applicants had undergone medical treatment in Deepak Hospital at Ahmednagar. It is further stated that the daughter of the applicants was hospitalized in May, 2006 and he had to betreatedinJanuary,2007. Thereafter, the applicant No.1 had to take medical treatment in March and October of 2007 and then in March, April, July, August and December of 2008. It is said that in June and July, 2009 applicants’ daughter had again undergone treatment.

4.So, those are explanations given for the delay. But, if we consider totality of the circumstances and abnormal delay of 2890 days, in my considered opinion, this is not case where delay should be condoned, particularly in view of the fact that not only the applicants, but even the respondents are all person who are in the evening of their lives and in the interest of justice it is necessary that the 20 years’ litigation should be ended in their lifetime. In the result, the Civil Application for

Dinkar Vithoba Shinde and Anr. v. Vishnu Vithoba Shinde and Ors.

Case brief

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What did the court decide?

Dinkar Vithoba Shinde and Anr. v. Vishnu Vithoba Shinde and Ors.

Case brief

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What did the court decide?

What the court decided

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