Writ petition challenging the rejection of a delay condonation application in an appeal against a property partition decree dismissed, holding the petitioner at fault and the cause of action not shown.
The petition is dismissed. No interference is shown under Article 227 of the Constitution of India.
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wp-5147/23.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5147 OF 2023
Smt. Sonal Prabhakar Patole
& Others.
...Petitioners.
Versus
Shri. Ajit Tukaram Mote and Others. ..Respondents.
Mr. Nilesh Wable, Ms. Bhavika Shinde i/b Mr. Umesh Mankapure for the petitioner.
——————
Coram : Sharmila U. Deshmukh, J.
Date : July 14, 2023.
P. C. :
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petitioners, who were the original defendant nos.3 to 7 and the other defendants seeking relief of declaration that the sale deed dated 27th September 1989 executed by one Tukaram Mote since deceased (who was father of plaintiff nos.1 and 3 and the husband of plaintiff no.2) in favour of respondent no.4 herein, who was defendant no.1 in the proceedings, is not binding on their share as the suit properties are ancestral properties. For the sake of convenience, parties are referred to by their status before the trial Court.
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of 2012 came to be partly decreed and RCS No.64 of 2007 which was instituted by defendant no.1-Arun Patole for perpetual injunction came to be dismissed. It was declared that sale-deed executed between deceased Tukaram and deceased defendant no.1 Arun is not binding on the shares of plaintiff and that plaintiff no.1 had 2/3rd share in the property and that plaintiff no.3 had 1/6th share in the suit land and defendant nos.3 to 7 in common have 1/6th share in the suit land. The decree was directed to be sent to the district collector for effecting partition of the agricultural property.
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has been shown for condoning the delay.
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explanation which is tendered for condoning the delay. Perusal of the application seeking condonation of delay discloses that the reason put forward is that it is only upon miscellaneous civil application no. 24 of 2018 being served upon them, they became aware that RCS No.7 of 2012 had been decreed in the year 2017. The application does not state the date on which the summons was served upon them in MCA No. 24 of 2018. Even assuming that the summons was served in MCA No.24 of 2012 subsequently, the fact that the petitioners were the defendants in the original proceedings cannot be lost sight of. There is no averment in the application as to why in spite of filing of the written statement, the petitioners did not keep track of the proceedings. The explanation which is sought to be tendered is that they sought information from the previous advocate when they were informed that they will have to challenge the same by way of appeal and subsequently the applicants applied for certified copies and have filed the present appeal in the year 2021. There are no details as to when the application for certified copy was made an as to when the same were received. The reason which has been put forward for condonation of delay of a considerable period of 3 years, 9 months and 25 days cannot be accepted in the absence of any details put on record. The application is bereft of any details and as such the impugned order rejecting the application cannot be faulted with.
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[Sharmila U. Deshmukh, J.]
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3 issues framed by the court
Whether Article 226/227 warrants interference to set aside the dismissal of an appeal due to excessive delay of 3 years, 9 months, and 25 days.
Whether the explanation regarding delayed awareness of the decree constitutes sufficient cause for condonation of delay under Article 226.
Whether a litigant who was a party to the original suit can claim negligence as a ground for condoning a considerable period of inactivity.
Smt. Sonal Prabhakar Patole and Others
Shri. Ajit Tukaram Mote and Others
Sharmila U. Deshmukh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
