Dismissed

Sanjay Vishwanath Kulkarni v. Rajkanya Shivaji Chalwad and Ors.

Bombay HC21 Jul 2010SA/882/2009

Case brief

AI extract

What is this about?

The High Court at Aurangabad dismissed a second appeal against the rejection of amiscellaneons application for condonation of delay. The court refused to interfere, noting that no evidence was produced to substantiate allegations against the appellant's former advocate regarding the non-deposit of costs.

What did the court decide?

The second appeal was dismissed at the stage of admission; the civil application also stood disposed of.

Sanjay Vishwanath Kulkarni Vs Rajkanya Shivaji… — Civil Procedure and Limitation | Bombay HC (2010)

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( 1 )

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 882 OF 2009 WITH CIVIL APPLICATION NO. 2417 OF 2009

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Sanjay s/o. Vishwanath Kulkarni

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..Appellant

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Versus

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Rajkanya d/o. Shivaji Chalwad and ors.

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..Respondents

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Shri N.D. Kendre, Advocate for the appellant.
Shri M.L. Dharashive, Advocate for respondent Nos. 1 & 2.
Shri P.P. Dudile, Advocate for respondent Nos. 3,4 & 5.

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CORAM : P.R. BORKAR,J.
DATED :21.07.2010

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P.C. :-

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1.This Second Appeal is directed against dismissal of
Misc. Application No. 94 of 2006 filed by original defendant
No.4 being aggrieved by the judgment and decree passed in
Regular Civil Suit No. 121 of 2003, decided on 15.04.2004, by
the Joint Civil Judge, Junior Division, Ausa. The Misc.
Application was filed for condonation of delay of 745 days in
filing the First Appeal in the District Court against decree
passed by the Trial Court. The District Court was not
satisfied with the reasons given for delay and dismissed the

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( 2 )

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application for condonation of delay on 20.11.2007.

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2.It is stated in the application for condonation of
delay that the applicant was serving at Bombay and it was
long distance from Latur. Therefore, it was not possible for
him to attend the Court on each and every date. He had
engaged advocate and even he had paid Rs. 300/- to the
advocate as costs for delay for filing the written statement,
but said amount was not deposited. As a result, the suit
came to be decided without written statement. It is further
stated that on 20.04.2006, the applicant while cultivating
the land was obstructed by the respondents and at that time
he learnt about the decision. Therefore, he immediately
applied for certified copies and filed appeal with
application for codonation of delay.

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3.Heard Adv. Shri N.D. Kendre for the appellant, Shri

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M.L. Dharashive for respondent Nos. 1 & 2 and Adv. Shri P.P.
Dudile for respondent Nos. 2,4 & 5.

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4.The learned District Judge has observed in his

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order that it is very difficult to believe that the advocate

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( 3 )

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after having received amount of Rs. 300/-, as costs for delay

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in filing written statement, would not deposit the same in
Court. He also disbelieved that merely because the appellant
was serving in Bombay, he was unable to contact his advocate.
Adv. Shri Dudile pointed out that the appellant was working
in Sachivalaya and also made other submissions. But the fact
remains that the appellant could have definitely contacted
his advocates at Latur and Ausa. Moreover, Adv. Shri Dudile

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for the respondent has pointed out memo of the Misc.
Application filed in the District Court, which shows that the
appellant had engaged Basvraj s/o. Shantayya Swami as General

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Power of Attorney. As such, there was a person, who was
resident of Latur, to look after litigation of present
appellant – Sanjay. It may be noted that original suit of
the year 2003 was pending for more than one year before its
decision.

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5.It does not appear that any affidavit of the
advocate or other evidence is produced to show that the
advocate was not available for communication or that he had
not deposited the amount paid to him as costs for delay in

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filing the written statement. It is not possible to accept

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( 4 )

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the allegation against the advocate without there being
sufficient foundation. In-fact, it would not be proper
practice to make allegations against undefended person behind
his back. It does not appear that any notice was given by
the appellant to the advocate regarding his conduct. This
Court specifically asked the advocate for the appellant, if
any notice was given to the advocate or any action was taken
against the advocate for his failure to deposit the amount of
costs with the Court. The answer was in the negative.

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6.In the circumstances of the case, in my opinion,
this is not case where interference in the Second Appeal is
called for. No substantial question of law arises. The
appeal is dismissed at the stage of admission.

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7.In view of dismissal of the Second Appeal, Civil
Application No. 2417 of 2009 does not survive. The Civil
Application also stands disposed of accordingly.

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snk/2010/JUL10/sa882.09

Sanjay Vishwanath Kulkarni v. Rajkanya Shivaji Chalwad and Ors.

Case brief

What is this about?

What did the court decide?

Sanjay Vishwanath Kulkarni v. Rajkanya Shivaji Chalwad and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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