Smt. Sushilabai Wife of Shivajirao Bhosale and Ors. v. Deelip Vasantrao Pahdanis

Bombay HC23 Jun 2014CAA/464/2014

Case brief

AI extract

What is this about?

The Single Judge rejected the applicants' civil application seeking condonation of a delay of over three years in filing an appeal. The court held that the applicants failed to demonstrate sufficient cause, relying on Supreme Court precedents that prohibit condoning undue delay without valid reasons.

What did the court decide?

Civil Application for condonation of delay and registration of Appeal from Order rejected.

Smt. Sushilabai Wife of Shivajirao Bhosale and Ors. Vs… — Specific Performance | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO.464 OF 2014 IN APPEAL FROM ORDER ST.NO.9259 OF 2014

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Smt.Sushilabai Wife of Shivajirao Bhosale & Ors.

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.. Applicants

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Vs.

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Deelip Vasantrao Phadanis .. Respondent

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Mr.Sachindra Bhaskar Shetye for the applicants

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Mr.Vijay Killedar for the respondent

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CORAM : K.K.TATED, J. DATED : 23/06/2014

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PC :

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1 Heard the learned counsel for the parties.

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2 This application is preferred by org.defendants for condonation of 2 years 317 days delay in filing Appeal from Order challenging the order dt.3.12.2011 passed by lower appellate court below Ex.61 rejecting the applicants application for restoration of Regular Civil Appeal No.9 of 1998 which was dismissed for default.

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3 The learned counsel for the applicant submits that the

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applicant filed application below Exh.61 before the lower Appellate court for adjournment on the ground that friend of arguing counsel expired and therefore, he was not available. That application was rejected by lower appellate court by order dt.3.12.2011. Thereafter, the applicant immediately preferred Application below Exh.62 for adjournment on the same ground. That application Ex.62 was rejected by lower appellate court by order dt.3.12.2011 on the ground that, application for restoration was rejected, hence, there is no question of considering the said application.

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4 The learned counsel for the applicant submits that applicant preferred Misc. Application No.6 of 2012 under Order 41 Rule 9 of the Civil Procedure Code for setting aside the order dt.3.12.2011 below Ex.61. That application was filed by the applicant on 2.1.2012.

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5 The learned counsel for the applicant submits that lower appellate court by its order dt.6.9.2012 rejected Misc.Application No.6 of 2012. Hence, applicant preferred Writ Petition No.4404 of 2013 on 3.10.2012. That Writ Petition was withdrawn on 7.5.2013 by the applicant with liberty to file Appeal from Order. Thereafter, applicant preferred Appeal from Order No.60 of 2014. There was a delay in preferring Appeal from Order but that delay was condoned by this court by order dt.22.1.2014. Thereafter, when the Appeal from Order was on board for hearing on 3.3.2014, the applicant withdrew the said Appeal from Order for filing afresh Appeal from Order challenging the order passed by lower Appellate court

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dt.3.12.2011 below Ex.61. Hence, the applicant filed the present Appeal from Order on 22.3.2014.

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6 The learned counsel for the applicant submits that there is a delay of more than two years 317 days in preferring the present Appeal from Order because earlier, applicant filed Misc.Application No.6 of 2012, Writ Petition No.4404 of 2013 and thereafter Appeal from Order No.60 of 2014. The learned counsel for the applicant submits that because of these three proceedings, there was delay of more than 3 years in preferring the present Appeal from Order. He submits that if delay is not condoned, irreparable loss and injury will be caused to the applicant. He submits that applicant has good chance of success in the present proceeding. He submits that the lower appellate court rejected applicants' application below Exh.61 which was for adjournment on the ground that arguing Counsel's friend expired. On the basis of these submissions, the learned counsel for the applicant submits that the present Civil Application may be allowed and delay of more than 3 years be condoned.

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7 On the other hand, the learned counsel for the respondent org.plaintiff vehemently opposed the present Civil Application. He filed affidavit in reply dt.12.6.2014. The learned counsel for the respondent org.plaintiff submits that they filed R.C.Suit No.996 of 1983 in the court of Civil Judge, Junior Division, Kolhapur for specific performance of agreement dt.11.11.1975. That suit was decreed by the learned Civil Judge, Junior Division, Kolhapur on 18.10.1997. Till today, due to various proceedings preferred by the

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applicant, respondent is not in a position to execute the judgment and decree passed by trial court in 1997. He further submits that even in Misc.Application No.6 of 2012, Writ Petition No.4404 of 2013 and Appeal from Order No.60 of 2014, there was delay on the part of the applicant. He submits that applicant intentionally prolonged the litigation just to avoid execution of judgment and decree passed by trial court in their favour. He submits that applicant has not shown sufficient cause for condonation of delay for more than three years. Hence, there is no substance in the present Civil Application and same may be dismissed with costs.

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8 I have heard both the sides at length. In the present proceeding, though the lower appellate court passed order on Ex.61 on 3.12.2011, applicant filed Misc.Application No.6 of 2012 on 2.01.2012 i.e. after more than one month. Same was rejected by the lower appellate court on 6.9.2012. Thereafter, applicant filed Writ Petition No.4404 of 2013 on 31.1.2013 i.e. after more than 3 months. Same was withdrawn by the applicant on 7.5.2013 with liberty to file appropriate proceeding i.e. Appeal from Order. After withdrawal of the Writ Petition, applicant filed Appeal from Order with application for condonation of more than 500 days delay. That Appeal from Order was filed by the applicant challenging the order passed by lower appellate court on 6.9.2012 in Misc. Application No.6 of 2012 and in order below Ex.61 which is impugned in the present proceeding. That Appeal from Order was withdrawn by the applicant and preferred the present Appeal from Order. It is to be noted that on each stage there is a delay in preferring the proceeding on the part

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of the applicant. Even in filing Misc.Application No.6 of 2012 there was a delay of about 30 days on the part of the applicant. That Misc.Application was rejected by lower appellate court on 6.9.2012. That was challenged by the applicant by preferring Writ Petition. That Writ Petition was filed by the applicant after more than 3 months. Even in the earlier Appeal from Order No.60 of 2014 there was delay on the part of the applicant. This itself shows that applicant has taken same in casual manner.

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9 The Apex Court in the matter of Damodar Pillai Vs. South Indian Bank Ltd, 2005(5) All.M.R. 961 (SC) held that hardship or injustice is not a ground for extending the period of limitation.

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10 The Apex Court in the matter of Pundlik Jalam Patil Vs. Ex.Engg. Jalgaon Medium Project and Ors, 2008(6) BCR 513 held that unless and until sufficient cause is shown, inordinate delay should not be condoned.

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11 The Apex Court in the matter of Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara & Anr, 2009(3) SCC pg 525 held that while dismissing an Appeal on the ground of limitation, going into the merits of the case is not allowed.

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12 The Apex Court in the matter of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation reported in 2010 (5) SCC 459, held that in the

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absence of sufficient cause, Court should not condone the delay.

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13 The Apex Court in the case of B. Madhuri Gaud Vs. B. Damodar Reddy, 2012 (12) SCC 693 held that if sufficient cause is not shown, delay should not be condoned.

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14 Recently, the Apex Court in the matter of Esha Bhattacharajee Vs. Managing Committee of Raghunathpur Nafar Academy 2013(12) S.C 450 held that if sufficient cause is not shown, application for condonation of delay be rejected.

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15 Considering the above mentioned facts and circumstances and the law declared by the Apex Court, I do not find any reason to entertain the present Civil Application which is delayed for more than three years. Hence, same is rejected.

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16 In view of rejection of Civil Application for condonation of delay, registration of Appeal from Order St.No.9259 of 2014 is rejected.

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(K.K.TATED, J.)

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Smt. Sushilabai Wife of Shivajirao Bhosale and Ors. v. Deelip Vasantrao Pahdanis

Case brief

What is this about?

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Smt. Sushilabai Wife of Shivajirao Bhosale and Ors. v. Deelip Vasantrao Pahdanis

Case brief

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What did the court decide?

What the court decided

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