Dismissed

Santojirao Baburao Jadhav v. Mahavir Bharmappa Mantri

Bombay HC5 Apr 2010WP/7766/2009

Case brief

AI extract

What is this about?

The petitioner filed a writ petition challenging the rejection of his application for condonation of delay in an appeal against a decree in a suit for specific performance. The court rejected the writ petition, noting the petitioner suppressed material facts regarding jurisdictional objections and execution proceedings.

What did the court decide?

Writ petition rejected; application for condonation of delay stands rejected.

1 Heard the learned counsel for the petitioner. The petitioner is the defendant in the suit for specific performance filed by the respondent. The suit was decreed on 20th July 2007. An appeal was preferred by the petitioner before the District Court on 6th November 2008 along with an application for condonation of delay. By the impugned order, the said application for condonation of delay has been rejected by the learned District Judge. The delay is of 786 days.

2The learned counsel for the petitioner invited my attention to the averments made in the application for condonation of delay and in particular paragraph 4 of the application. He pointed out that the daughter of the petitioner who was a heart patient was pregnant and she was residing with the petitioner. It is stated that from 15th November 2006 to 12th December 2006, the daughter was admitted in a hospital at Kolhapur. It is also stated that from 29th December 2006 to 2nd January 2007, the daughter was again hospitalised. He stated that on 18th February 2007, the daughter delivered a child and on 11th

November 2007, the daughter died due to heart ailment. The learned counsel for the petitioner pointed out that the petitioner's wife suffered a shock and she was hospitalised on 14th November 2007. It is stated that from time to time, the petitioner�s wife was admitted in hospital and lastly she was discharged on 21st April 2008. It is stated that she is still under treatment. He submitted that all relevant documents issued by various hospitals have been annexed to the application.

3He pointed out that the petitioner was contesting the suit. He was under an impression that the suit will be transferred to the newly created Court of Civil Judge Senior Division at Ichalkaranji. He pointed out that the petitioner was under an impression that notice of transfer will be issued. He submitted that the suit was not transferred to the newly established Court at Ichalkaranji and instead the same was transferred to another Court at Kolhapur. He relied upon a decision of this Court in case of Pusaram s/o Dashrathlalji Agrawal vs. Ratilal s/o Valji Laddha and another [2005 (4) Mh.L.J. 341]. He submitted that in view of the said decision, decree passed by the Civil Court is nullity and this aspect goes to the root of the matter.

4I have carefully considered the submissions. The petitioner has come out with the case of ailment of his daughter during the period from 15th November 2006 to 11th November 2007 when unfortunately the daughter died. Thereafter, the case is that from 14th November 2007 till 21st April 2008 the petitioner's wife was constantly under treatment.

petitioner was served with notice of execution of the decree for specific performance on 2nd August 2007. It is not in dispute that on 11th September 2007, the petitioner made an application in the execution application raising an objection to the decree on the ground that the same was passed by the Court having no jurisdiction. By order dated 29th January 2008, the said application was rejected. An appeal was preferred against the said order by the petitioner in the year 2008. Moreover, in the execution, on 13th August 2008, a sale deed has been executed in favour of the decree holders by the Court Commissioner.

6At this stage, the learned counsel for the petitioner submitted that the petitioner is not sure whether the appeal referred to in paragraph 11 of the affidavit was really filed. Even assuming that the appeal was not filed by the petitioner, what is material is that the petitioner was admittedly served with the notice of execution application on 2nd August 2007 and on 11th September 2007, the petitioner raised an objection to the jurisdiction of the Court. The said application was prosecuted and was rejected on 29th January 2008. Thus, material facts have been completely suppressed in the application for condonation of delay . Moreover, the fact that on 3rd August 2008, a sale deed was executed in execution application was also suppressed by the petitioner. The petitioner cannot plead ignorance of the execution of the sale deed as the petitioner was not only a party to the execution but he appeared and contested the execution application. As stated earlier, the application for condonation of delay was filed on 6th November 2008.

application for condonation of delay has to be liberal. However, in the present case, not only that the delay is of more than 780 days but this is a case where the petitioner has suppressed material facts while applying for condonation of delay.

Santojirao Baburao Jadhav v. Mahavir Bharmappa Mantri

Case brief

What is this about?

What did the court decide?

Santojirao Baburao Jadhav v. Mahavir Bharmappa Mantri

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rachojirao Subrao Jadhav-Desai Vs Subrao Rachojirao Jadhav - Desai (Decd.)by Lrs. - Ramabai S.Jadhav-Desai (Decd.)by Lrs.and Ors.

Shri Hiralal Mahamad Shaikh Vs Shri Jagannath Madhavrao Supate and Anr.

Anandibai Ramrao Sawant and Ors. Vs Dadaso Pandurang Desai and Ors.

Hemant Shankarrao Mane Vs Malati Mahadev Chitnis

Sohail Ajijulhah Navyajdan (Irani) and Anr. Vs Bharat Umakant Bhagwat

Farid Ilahibaksha Maner Vs Vithal Ranoji Haval and Ors.