Dismissed

Sou. Janabai Babu Kunakekar v. Shri. Dattatraya Bhairu Chechar and Ors.

Bombay HC27 Aug 2012WP/6447/2012

Case brief

AI extract

What is this about?

The petitioner filed a writ petition challenging a Civil Judge's order condoning a 29-day (contested as 39-day) delay in filing an application to set aside an ex parte decree. The High Court found the discretion exercised positively by the trial court, without grave injustice demonstrated, and rejected the petition.

What did the court decide?

Petition rejected; order of the Civil Judge upholding condonation of delay maintained.

Sou. Janabai Babu Kunakekar Vs Shri… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.6447 OF 2012

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Sou.Janabai Babu Kunakekar Vs.

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...Petitioner

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Shri.Dattatraya Bhairu Chechar & Anr. ...Respondents

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Mr.Prashant S.Bhavake for petitioner.

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CORAM : N.M. JAMDAR J. DATE : 27 August, 2012.

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P.C.:

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Heard learned counsel for the petitioner.

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By this petition the petitioner challenges the order passed by learned Civil Judge, Junior Division, Kagal allowing the application filed by the Respondents for condonation of delay of 29 days in filing an application for setting aside the exparte decree.

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Learned counsel for the petitioner submits that the delay caused by the Respondents in filing the application for setting aside the exparte decree is not of 29 days but is of 39 days. He further submits that the period between 30 August 2011 and 9 September 2011 i.e.of 10 days has not been satisfactorily explained by the Respondents. He relies on the judgments which were relied upon before the trial Court viz.(1) M/s.Ware's Education Trust and Anr.Vs.Sunita S.Shinde & Anr. - 2008 (6) All M.R.117 and Novita Tukaram Mangle Vs.Saibaba Shikshan Prasarak Mandal - 2008 (5) Mh.L.J.618, and submits that the

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order passed by the Civil Judge be set aside.

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I have gone through the application filed for condonation of delay as well as the order passed by the learned Civil Judge. Even assuming that the delay was of 39 days and not of 29 days as contended, I find no perversity in the approach of the learned Civil Judge. The order passed by learned Civil Judge is positive use of the discretion vested in him. As per the law laid down by the Apex Court, such positive use of discretion ought not to be interfered with, unless some grave and irreparable injustice is demonstrated. The petitioner has been compensated by the order of costs. No case is made out to exercise equitable jurisdiction of this Court. The petition is rejected.

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(N.M.JAMDAR, J.)

Sou. Janabai Babu Kunakekar v. Shri. Dattatraya Bhairu Chechar and Ors.

Case brief

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What did the court decide?

Sou. Janabai Babu Kunakekar v. Shri. Dattatraya Bhairu Chechar and Ors.

Case brief

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What did the court decide?

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