Allowed

Manjulabai Aukdeo Auti v. Dattatraya Mahadu Ware

Bombay HC11 Nov 2011WP/386/2005

Case brief

AI extract

What is this about?

The High Court of Bombay, Bench at Aurangabad, allowed a writ petition setting aside an order rejecting an application for condonation of delay in filing an appeal. The court held that substantial justice required condoning the delay where the petitioner lacked knowledge of the decree due to no instructions from the advocate.

What did the court decide?

Writ Petition allowed; impugned order set aside; appeal to be registered by District Court upon payment of Rs. 7,000/- cost.

Manjulabai Aukdeo Auti Vs Dattatraya Mahadu Ware — Property and Title | Bombay HC (2011)

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1 W.P.No.386/05

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.386 OF 2005.

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Manjulabai Sukdeo Auti,
Age 64 years, Occ.Household,
R/o Panoli, Taluka Parner,
Dist.Ahmednagar.

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... Petitioner.

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Versus

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1. Dattatraya S/o Mahadu Ware,
(died) through Legal representatives;

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1-A) Shantabai Dattatraya Ware,
Age 60 years,Occ.Household,
R/o Panoli,Taluka Parner,
Dist.Ahmednagar.

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1-B) Sushilabai Dattatraya Ware,
Age 55 years,Occ.Household,
R/o as above.

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1-C) Sou.Mandabai Subhash Ware,
Age 40 years, Occ.Household,
R/o as above.

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1-D) Kundabai Nivrutti Udar,
Age 38 years,Occ.Household,
R/o as above.

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1-E) Mukund Dattatraya Ware,
Age 33 years, Occ.Agri.,
R/o as above.

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1-F) Shevrabai Dattatraya Ware,
Age 17 years, Occ.Nil,

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2 W.P.No.386/05

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since minor represented through
her natural guardian i.e.
Respondent No.1-A.

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2. Pandurang S/o Rakhma Zagde,
Age 51 years, Occ.Agri.,
R/o Panoli, Taluka Parner,
Dist.Ahmednagar.

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... Respondents.

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Mr.K.N.Lokhande, advocate holding for
Mr.D.G.Nagode, advocate for the petitioner.
Mr.R.N.Dhorde, advocate for Respondent Nos.1A to
1F.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 11.11.2011.

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ORAL JUDGMENT :

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1. Heard.

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2.The petitioner impugns the order dated
28.7.2004, passed by the 4th Adhoc Addl. District
Judge, Ahmednagar, rejecting the application for
condonation of delay in filing the appeal.

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3.The learned counsel for the petitioner
submits that the District Court has taken a very
hyper technical approach while rejecting the

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3 W.P.No.386/05

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application for condonation of delay. The matter
involves the rights of the parties in an
immovable property. The Court should have taken a
liberal approach. It is not disputed that the
petitioner was residing at Bombay along with his
sons and grandsons and for about a month, the
petitioner was not well and was hospitalised,
could not contact the advocate and the advocate
passed no instructions purshis, without
intimating the petitioner. The petitioner did
not get knowledge of the judgment and decree and
immediately within two days of getting knowledge,
the petitioner took steps of filing an appeal.
In such circumstances, the delay should have been
condoned.

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4.The learned counsel for the plaintiff
submits that the District Court has properly
considered all the aspects and has rightly
rejected the application. The petitioner has not
filed any documentary evidence to substantiate
the averments made about her illness. In
absence of any documentary evidence, the Court
was justified in negativing the contentions of

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4 W.P.No.386/05

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the petitioner. The learned counsel relies on
the judgment of the learned Single Judge of this
Court in a case of "Bipin H.Doshi Vs. Jawaharlal
Prajapati and others" reported in 1999 (1) ALL MR
63. The learned counsel further contends that
the expression "sufficient cause" has to be
construed in a manner that it can not be erased
from Section 5 of the Limitation Act. The
learned counsel relies on the judgment of the
learned Single Judge of this Court in a case of
"Kamalbai W/o Narasaiyya Shrimal and another Vs.
Ganpat S/o Vithalrao Gavare" reported in 2007 (1)
Mh.L.J. 807. The learned counsel further
contends that deliberately the petitioner did not
appear and the petitioner has gained advantage by
causing delay.

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5.It is a trite law that when technical
considerations and cause for substantial justice
are pitted against each other, the cause for
substantial justice shall be sub-served.

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6.It is not disputed that the advocate of
the petitioner had filed no instructions purshis.
Even the District Court in its impugned order has

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5 W.P.No.386/05

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observed that the advocate before filing No
instructions purshis has not issued any notice to
the petitioner nor any such notice is on record.
Nothing has been brought on record to show that
after the judgment and decree was passed, the
petitioner had the knowledge of the same and
still had not preferred appeal. The petitioner
contends that when the petitioner approached her
lawyer, on 6.1.2001, at that time the petitioner
got the knowledge that the suit is decreed on
19.10.2000 and immediately on 8.1.2001, filed
application for certified copy and filed appeal.
From the date of knowledge, there is no delay in
filing the appeal.

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7.There is no reason to disbelieve the
ground enumerated by the petitioner inasmuch as
there is no contra evidence in that regard. As
the advocate of the petitioner had filed No
instructions purshis without intimating the
petitioner, knowledge can not be attributed to
the petitioner about the judgment and decree.

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8.In light of the above, I am inclined to

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6 W.P.No.386/05

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condone the delay by setting aside the impugned
order.Atthesametime,the

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applicant/petitioner also deserves to be mulct
with cost.

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9.In the result, I pass the following

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order :

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(i)The Writ Petition is allowed. Rule is
made absolute in terms of prayer clause (B) on
condition that the petitioner pays cost of Rs.
7,000/- (Rupees seven thousand) to the plaintiff
within a period of three (3) weeks from today.
If the cost is paid within a period of three(3)
weeks, then the District Court shall register the
appeal if otherwise conforms with all other legal
requirements.

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(ii)In view of disposal of Writ Petition,
Civil Application No.12401/2011 stands disposed
of.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp386.05

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7 W.P.No.386/05

Manjulabai Aukdeo Auti v. Dattatraya Mahadu Ware

Case brief

What is this about?

What did the court decide?

Manjulabai Aukdeo Auti v. Dattatraya Mahadu Ware

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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