Allowed

Housa Vitthal Budhawale v. Sunil Banshiram Bhosale and Ors.

Bombay HC12 Apr 2010WP/4019/2009

Case brief

AI extract

What is this about?

The High Court quashed the impugned order rejecting the petitioner's application for condonation of delay. The court held the delay should be condoned subject to costs as the petitioner contested ignorance of the decree until receiving certified copies.

What did the court decide?

The impugned judgment and order dated 23rd February, 2009 is quashed and Civil Misc. Application No.41 of 2008 is allowed.

Housa Vitthal Budhawale Vs Sunil Banshiram… — Civil Procedure and Limitation | Bombay HC (2010)

wp-4019-09.sxw

SRJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶5

CIVIL APPELATE JURISDICTION

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WRIT PETITION NO.4019 OF 2009

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Smt. Housa Vitthal Budhawale

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.. Petitioner.

¶9

V/s.

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Shri Sunil Banshiram Bhosale
& Others.. Respondents.

¶11

Mr. Milind Deshmukh, for Petitioner.
Mr. R.V.Bansode, for Respondent No.1.

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CORAM :A.S.OKA,J.

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DATE :12th APRIL,2010

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P.C.:-

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1]Heard learned Counsel appearing for the
Petitioner and learned Counsel appearing for the 1st
Respondent. On 27th August, 2009 notice for final
disposal was issued to the 1st Respondent who is the
only contesting party as being the original Plaintiff.
The Petitioner is the 4th Defendant in the suit filed
by the 1st Respondent. On 18th April, 2008 the suit was
decreed. On 11th November, 2008 an application for
condonation of delay alongwith an appeal was preferred
rd
by the Petitioner. By the impugned order dated 23
February, 2009, learned District Judge has rejected
the application.

¶16

SRJ 2 wp-4019-09.sxw

¶17

2]The learned Counsel appearing for the
Petitioner submitted that delay was only of two months
and the specific case of the Petitioner was that she
was not aware of the decree dated 18th February, 2008.
He stated that after the Petitioner became aware of
the decree passed on 18th February, 2008,an application

¶18

for obtaining certified copies of the Judgment and
decree was made and after receiving copies on 7th
November, 2008, on 11th November, 2008 an appeal was
preferred.

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3]The learned Counsel appearing for the 1

¶20

Respondent invited my attention to the affidavit in
reply. He submitted that the averments made in the
reply and in particular in sub-para 8 clearly show
that all alongwith the Petitioner was aware of the
pendency of the suit and in fact, the Petitioner was
represented by the same Advocate who was representing
2nd to 4th Respondents who were the other defendants
in the suit. The learned Counsel invited my attention
to the xerox copy of the Vakalatnama annexed to the
reply. He, therefore, submitted that as the Petitioner
was fully aware of the pendency of the suit, the
Appellate Court was justified in rejecting the

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application for condonation of delay.

¶22

3 wp-4019-09.sxw

¶23

SRJ

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4]I have given careful consideration to the
submissions. Perusal of the averments made in the
application for condonation of delay show that the
specific case of the Petitioner is that the Petitioner
was not aware of the decree passed on 18th February,

¶25

2008. In the said application, the Petitioner has not
pleaded ignorance about the knowledge of the pendency
of the suit. It is contended in the application that

¶26

her thumb impression on Vakalatnama of an Advocate was
obtained at her residence. While preferring an appeal

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against decree, the Petitioner was called upon to
explain the delay from the date of the decree. The
said delay was explained by stating that till 4th

¶28

November, 2008, the Petitioner was not aware of the
decree dated 18th February, 2008. On 4th November,

¶29

2009, after she became aware of the decree, the

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Petitioner applied for certified copy thereof which
was received on 7th November, 2008. An application for
condonation of delay was filed on 11th November, 2008.

¶31

There is nothing on record to show that after 18th
February, 2008, the Petitioner was aware of the decree
at any date prior to 4th November, 2008.
5]In the circumstances, the entire approach of

¶32

the Appellate Court was erroneous. The delay ought to
have been condoned subject to Petitioner paying costs.

wp-4019-09.sxw

SRJ

The amount of costs is quantified at Rs.5,000/-.
Hence, I pass following order:-

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(i)The impugned judgment and order
dated 23rd February, 2009 is quashed and set
aside.

¶38

(ii)Civil Misc. Application No.41 of
2008 is hereby allowed.
(iii)The Petitioner shall pay costs of
Rs.5,000/- to the 1st Respondent within a
period of ten weeks from today. The deposit
of the amount of costs with the Appellate

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Court within the stipulated period will be

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treated as a sufficient compliance. If

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compliance is not made within the
stipulated period, the impugned order will
stands.

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(iv)Writ Petition is allowed in the above

¶43

terms.

Housa Vitthal Budhawale v. Sunil Banshiram Bhosale and Ors.

Case brief

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What did the court decide?

Housa Vitthal Budhawale v. Sunil Banshiram Bhosale and Ors.

Case brief

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