Dismissed

Dhondu Shakharam Patil v. Nandlal Waghumal Kukarela Lrs Gurabai and Others

Bombay HC27 Jul 2018SA/703/2018

Case brief

AI extract

What is this about?

Application seeking condonation of 20-year delay in filing a second appeal was rejected in limine. The court held that the respondent's long struggle to enforce a decree via revenue litigation was not a sufficient justification for the appellant's belated challenge.

What did the court decide?

Application for condonation of delay rejected in limine; second appeal dismissed.

Dhondu Shakharam Patil Vs Nandlal Waghumal Kukarela Lrs… — Property and Title | Bombay HC (2018)

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CA 5316/2018 & Ors.

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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928 CIVIL APPLICATION NO.5316 OF 2018
IN SAST/9328/2018

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WITH

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CA/5318/2018 IN SAST/9328/2018

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DHONDU SHAKHARAM PATIL

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.. APPLICANT

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(Orig.Defendant)

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VERSUS

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NANDLAL WAGHUMAL KUKARELA,
DECEASED THROUGH LRS.-
SMT. GURABAI NANDLAL KUKREJE
AND OTHERS..RESPONDENTS
(Orig.Plaintiffs)

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Advocate for Applicant : Mr.Patil Vinod Prakash

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CORAM: P.R.BORA, J.

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DATE :27th July,2018.

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PER COURT :

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1)Head Shri V.P.Patil, learned counsel

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appearing for the applicant/appellant.

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2)The applicant has presented the Second
Appeal challenging the judgment and order passed
by learned 4th Additional District Judge, Jalgaon

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2 CA 5316/2018 & Ors.

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in Misc. Civil Application No.168/1995 decided on
3rd April, 1998. Since delay of 7203 days has
occurred in filing the second appeal, present
application is filed by the applicant seeking
condonation of the said delay.

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3)Respondent herein had filed Special

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Civil Suit No.84/1989 against the present
appellant, seeking specific performance of
agreement of sale. The said civil suit was
decreed. Aggrieved by the judgment and decree so

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passed in the said civil suit, the
appellant/applicant preferred the First Appeal
before the District Court at Jalgaon. Since

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delay had occurred in filing the first appeal,
Misc. Civil Application No.168/1995 was preferred

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by the applicant, seeking condonation of delay

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caused in filing the first appeal. The learned

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District Judge dismissed the said Misc. Civil
Application, vide order passed on 3rd April, 1998.
Against the said order, the applicant has
preferred the present second appeal in the year

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3 CA 5316/2018 & Ors.

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2018 and along with the said appeal has filed the
present application seeking condonation of delay,
which has occurred in filing the second appeal.

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4)In the decree passed by the Joint Civil
Judge, Senior Division, Jalgaon in Special Civil
Suit No.84/1989, the defendant therein was
directed to execute the sale deed of the suit
property in favour of the plaintiff within six
months from the date of the order after obtaining
the requisite permission from the competent

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authority to transfer the suit field and to
handover the possession thereof to the plaintiff.
It is the contention of the present applicant

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that though the defendant applied for such
permission to Tahsildar, Erandol, the same was
refused and further order was passed by the
Tahsildar thereby forfeiting the subject land to
the Government. It is the further contention of

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the applicant that though the present respondent,
i.e. original plaintiff challenged the said order

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before the Sub Divisional Officer, Jalgaon, the

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4 CA 5316/2018 & Ors.

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appeal so filed was dismissed by the said

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authority. The respondent then preferred Tenancy
Revision Application before Maharashtra Revenue

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Tribunal, Mumbai. The Tribunal also did not

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cause interference in the order passed by the
Tahsildar and confirmed by the Sub Divisional

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Officer, Jalgaon. Against the order passed by

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the Tribunal, the respondent filed writ petition
No.5329/1995 before the High court and the High

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court has allowed the said writ petition. The

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learned counsel submitted that in view of the

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order passed by the High Court in the writ
petition, now the decree passed in Special Civil
Suit No.84/1989 has become enforceable. The

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learned counsel submitted that in such
circumstances, the present applicant had
preferred the second appeal challenging the order

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passed by the District Court rejecting the

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application for condonation of delay which has
occurred in filing the first appeal by the

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present appellant. The learned counsel submitted

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that the delay, which has occasioned is

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5 CA 5316/2018 & Ors.

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unintentional and, therefore, prayed for

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condoning the same.

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5)Having considered the facts as are

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stated in the application and reproduced by the learned counsel in his submissions before the Court, unhesitatingly it can be said that the applicant has not made out any case even for issuance of notice to the respondent and the application filed by the applicant deserves to be rejected in limine. From the documents filed on record, it is quite evident that for getting the fruits of the decree passed in his favour way back in the year 1994, the present respondent was

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agitating in different forums for long 24 years
and ultimately succeeded in the writ petition
before the High Court. As stated herein above,

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though the decree of specific performance was
granted in favour of the respondent/plaintiff,
the defendant was under an obligation to obtain

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the requisite permission from the revenue

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authority. Merely because the revenue

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6 CA 5316/2018 & Ors.

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authorities did not grant such permission to the
defendant and the respondent/plaintiff was,
therefore, required to litigate up to the High
Court, that cannot be a justification available
for the appellant/defendant to file the second
appeal belatedly, i.e. after about 20 years,
against the judgment and order passed by the
District Court in Misc. Civil Application
No.168/1995. The civil application being devoid
of any substance deserves to be rejected at the
thresholdandisaccordinglyrejected.
Consequently, the second appeal on stamp number
also stands dismissed. Pending civil

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application, if any, stands disposed of.

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(P.R.BORA)
 JUDGE

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bdv/
fldr 26.7.18

Dhondu Shakharam Patil v. Nandlal Waghumal Kukarela Lrs Gurabai and Others

Case brief

What is this about?

What did the court decide?

Dhondu Shakharam Patil v. Nandlal Waghumal Kukarela Lrs Gurabai and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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