Allowed

Mr. Balaji Kannan Acharya v. Mrs. Gajlaxmi Acharya

Bombay HC14 Oct 2019SA/173/2017

Case brief

AI extract

What is this about?

The High Court allowed the second appeal filed by Appellant No. 2 regarding his sister's partition suit. The court accepted the appellants' explanation for an 78-day delay in filing the first appeal, ruling that ignorance of the correct court jurisdiction was not enough and cost was paid to compensate for inconvenience.

What did the court decide?

The impugned order setting aside Condonaation Application is set aside. Appeal allowed subject to payment of cost by appellant. Civil Misc. Application allowed and operational.

Mr. Balaji Kannan Acharya Vs Mrs. Gajlaxmi Acharya — Partition | Bombay HC (2019)

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sa 173.17.doc

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Urmila Ingale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO. 173 OF 2017
WITH

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CIVIL APPLICATION NO. 300 OF 2017

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Mr.Balaji Kannan Acharya and anr. .. Appellants
Vs.
Mrs.Gajlaxmi Acharya .. Respondent

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Mr.Manoj M.Gadkari, for the Appellants.
Mr.Siddharth C.Wakankar, for the Respondent.

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CORAM : M.S.KARNIK, J.

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 DATE : 14th OCTOBER, 2019

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ORAL JUDGMENT :

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.Heard learned Counsel for the appellants and

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learned Counsel for the respondent.

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2.At the outset, it is pointed out by learned Counsel for

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the respondent that the matter as between appellant No.1 and
respondent has been settled. It is pointed out that in the course
of execution proceedings, the appellant No.1 has filed purshish

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sa 173.17.doc

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that he has no objection to the claim of the plaintiff as granted
by the trial Court. In this view of the matter, present Second
Appeal is prosecuted by learned Counsel for the appellants only
on behalf of appellant No.2. Appellant No.2 is the original
defendant No.2. The respondent – original plaintiff who is
appellant’s sister had filed Suit for partition and separate
possession. By the judgment and decree dated 25/08/2015, the
Suit came to be decreed in favour of the plaintiff and she
received a share in the suit property. As there was delay of 78
days in filing the Appeal, the appellants filed Civil Misc.
Application No. 131 of 2016 for condonation of delay of 78 days
in filing the Appeal. The reason stated in the application for
condonation of delay was that in view of the enhancement of
pecuniary jurisdiction, the appellants were under the impression
that the appellants would have to file Appeal before the High
Court and therefore, the limitation would be 90 days. However,
it was later realised that against the judgment and decree,
Appeal would lie before the District Court. This resulted in
delay of 78 days. The First Appellate Court rejected the

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sa 173.17.doc

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application.

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3.The present Appeal involves following substantial

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question of law.

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“Whether the Appellate Court was justified in refusing
to condone the delay of 78 days caused in filing the
Appeal considering the explanation offered by the
appellants ?”

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4.Admit. The matter is heard finally be consent of the

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parties.

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5.Learned Counsel for the respondent opposes the

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Appeal. He invited my attention to the reasons recorded by the
Appellate Court and submitted that appellants have failed to
show any sufficient cause to seek condonation of delay. He
would urge and according to him, as rightly held by the
Appellate Court that ignorance of law is no excuse.

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6. I have gone through the order passed by the

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sa 173.17.doc

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First Appellate Court. The Suit is filed for partition and separate
possession. The Suit is decreed in favour of the respondent –
original plaintiff. There was delay of 78 days in filing the
Appeal and therefore Misc. Civil Application for condonation of
delay was filed. It is stated by the appellants that they were
under a wrong impression that Appeal would have to be filed
before the High Court for which limitation is 90 days. It was
later realised that the Appeal has to be filed before the District
Court and this resulted in delay of 78 days in filing the Appeal.
This they say is on account of wrong advice of their Advocate
which appellants followed. The delay is thus not deliberate or
intentional. The appellants were under bonafide impression
that the limitation for filing the Appeal is 90 days as the same
was required to be filed before the High Court and in my
opinion, this explanation deserves to be accepted. Considering
that the delay is of 78 days, right to file Appeal should not be
foreclosed only on the ground of delay. In the present facts, the
inconvenience caused to the respondent can be compensated by
imposing cost.

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sa 173.17.doc

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7.In this view of the matter, subject to payment of cost
of Rs.5,000/- to be paid by appellant No.2 to the respondent
within a period of 4 weeks from today, Appeal is allowed. The
impugned order is set aside. Civil Misc. Application No. 131 of
2016 is allowed. As the Appeal before the First Appellate Court
is filed in 2016, the First Appellate Court is requested to
expedite the hearing of the Appeal. It is made clear that this
decision will enure to the benefit of the appellant No.2 only.

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8.In view of disposal of the Second Appeal, Civil

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Application does not survive and the same stands disposed of
accordingly.

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Urmila Digitally signedby Urmila P. P. IngleDate: 2019.10.15 17:11:36 +0530 Ingle

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Mr. Balaji Kannan Acharya v. Mrs. Gajlaxmi Acharya

Case brief

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What did the court decide?

Mr. Balaji Kannan Acharya v. Mrs. Gajlaxmi Acharya

Case brief

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