Dismissed

Kanchankumar Vilas Kasture, Gpa of Shashikalabai Vilasrao Kasture v. Sarojini Rajendra More and Anr.

Bombay HC14 Nov 2011WP/6736/2011

Case brief

AI extract

What is this about?

This Writ Petition challenged the District Court's order condoning a delay of eight years in filing an appeal. Upholding the District Court's exercise of discretion and findings on sufficient cause, the High Court dismissed the petition, enhanced costs against the respondent, and directed a six-month timeline for the appeal hearing.

What did the court decide?

Petition dismissed; costs enhanced to Rs. 7,000; appeal to be disposed within six months.

Kanchankumar Vilas Kasture, Gpa of… — Civil Procedure and Limitation | Bombay HC (2011)

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1 WP 6736.2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 6736 OF 2011

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Kanchankumar S/o Vilas Kasture .... PETITIONER

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V E R S U S

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Sou.Sarojini Rajendra More & another .... RESPONDENTS

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Mr. P.R.Katneshwarkar, Advocate for the petitioner. Mr. S.S.Deshmukh, Advocate for Resp. Nos. 1 & 2.

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CORAM : S.V.GANGAPURWALA, J. DATE : 14/11/2011.

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ORAL ORDER :

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The present petitioner is the original plaintiff, who had filed Suit for recovery of possession. The said Suit came to be decreed vide Judgment and decree dated 24/09/2001. The present respondent no. 1 filed Appeal against the said Judgment and decree. There was delay in filing the Appeal. As such, respondent no. 1 filed an application for condonation of delay bearing Misc. Civil Application No. 274 of 2009. The District Court allowed the said application. Aggrieved thereby, the original plaintiff has filed the present Writ Petition.

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2 WP 6736.2011

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Mr. Katneshwarkar, the learned counsel for the petitioner

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strenuously contends that no proper explanation has been given by respondent no. 1 in the application for not attending the Suit after filing of the Written Statement. It is not disputed that the summons were served. Respondent no. 1 appeared in the Suit, filed Written Statement and thereafter did not appear in the Suit. Respondent no. 1 was represented by her lawyer. Eventually, the said Suit was decreed on 24/09/2001. There was an inordinate delay of eight ( 8 ) years two (2 ) months and fifteen ( 15 ) days in preferring the Appeal. The learned counsel contends that the District Court without considering the concept of “ sufficient cause ”, has condoned the delay. The learned counsel contends that the delay could not have been condoned in such a casual manner. Respondent no. 1 is in possession of the property. Respondent no. 1 has deliberately caused delay in filing Appeal and not contesting the Suit, as respondent no. 1 was to gain by delay.

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The learned counsel further contends that the Law of

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Limitation will have to be applied with all its rigour. No explanation is given by respondent no. 1 for not attending the Court and not filing the Written Statement within the stipulated period. According to the learned counsel, the explanation that the lawyer had said that whenever her presence is required, the lawyer would intimate her and as she did not

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3 WP 6736.2011

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receive the intimation, did not attend the proceedings, can not be digested. The learned counsel relies on the dictum of the Apex Court in the case of Oriental Aroma Chemical Industries Ltd. V/s Gujarat

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Industrial Development Corporation and another reported in 2010 ( 5 ) SCC – 459 , so also the Judgment of the Apex Court in the case of P.K.Ramachandran V/s State of Kerala reported in 1997 ( 7 ) SCC –

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556 and the Judgment of the learned Single Judge of this Court in the case of Kamalbai Narasaiyya Shrimal & another V/s Ganpat Vithalrao Gavare reported in 2007 ( 1 ) Bom. C.R. 51 .

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Mr. Deshmukh, the learned counsel for respondent nos. 1 and 2 supports the order and states that the present respondent no. 1 was not aware of the Judgment and decree till the time the notice of execution was served. The plaintiff/decree holder though filed the execution proceedings in the year 2003, added the present respondent no. 1 as party/Judgment Debtor only in the year 2009 and thereafter the notice was issued and on receipt of the notice, immediately the Appeal was filed. The learned counsel further contends that all these aspects have been considered by the District Court and the discretion has been exercised properly.

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No doubt, to condone the delay or not is the discretion of the

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4 WP 6736.2011

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Court. The discretion that is vested is a judicious discretion to be exercised as per the judicial norms and legal principles. It is also a trite law that when technical considerations and cause for substantial justice are pitted against each other, the cause for substantial justice shall be subserved.

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In the present case, the District Court has exercised its discretion in condoning the delay. The matter was sent for measurement to the T.I.L.R., who had issued notices. The same was in the year 2008. Admittedly, the present respondent no. 1 was not made party/Judgment debtor in the execution proceedings. So, no question arises of notice being served on respondent no. 1. The present respondent no. 1 was added as party/Judgment debtor in the execution proceeding only in the year 2009 and thereafter only the notice was issued to respondent and on receipt of the said notice in November, 2009, immediately the Appeal was filed. The District Court has taken into consideration the explanation given by respondent no. 1 for her non appearance during the pendency of the Suit.

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In a case of Oriental Aroma Chemical Industries Ltd. [ supra ], it was noticed by the Apex Court that ex-facie a wrong statement was made. The statement was made that the Law department

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5 WP 6736.2011

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came to know about the exparte decree only in the month of January/February, 2008, whereas it was on record that the General Manager ( Law ) had issued instructions to the Advocate to appear and file Vakil Patra as early as in the month of May, 2001 and also had given Vakil Patra to another Advocate in the month of May, 2005. Such is not the case here. The District Court has not found that respondent no. 1 has given false facts. The District Court has recorded reasons while condoning the delay. The said reasons are plausible one. The Writ Petition can not be entertained only on the count that some other view may also be possible.

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No doubt, the Suit of the present petitioner was for recovery of possession from the Judgment Debtor. It is submitted that 17 R. land i.e. the suit property is a Jirayat land as per the contention of the learned counsel for respondent no. 1. The District Court has imposed costs of Rs. 2,000/-, which would be meagre. I enhance the costs to Rs. 7,000/-. Respondent no. 1 shall pay the additional costs of Rs. 5,000/- to the petitioner within the period of three ( 3 ) weeks from today i.e. 05/12/2011. If the said costs is paid, the District Court shall register the Appeal, if it otherwise complies with all other legal requirements.

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Taking into account the fact that the petitioner is litigating

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6 WP 6736.2011

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since long time, the District Court shall decide the Appeal as expeditiously as possible and preferably within the period of six ( 6 ) months from its

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registration.

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The Writ Petition is accordingly disposed of.

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[ S.V. GANGAPURWALA,J. ]

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KNP/WP WP 6736.2011

Kanchankumar Vilas Kasture, Gpa of Shashikalabai Vilasrao Kasture v. Sarojini Rajendra More and Anr.

Case brief

What is this about?

What did the court decide?

Kanchankumar Vilas Kasture, Gpa of Shashikalabai Vilasrao Kasture v. Sarojini Rajendra More and Anr.

Case brief

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What did the court decide?

What the court decided

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