Disposed

Bharat Dashrath Nikam and Anr. v. Shri. Sahebrao Pundlik Aher

Bombay HC2 Feb 2024WP/7748/2022

Case brief

AI extract

What is this about?

Writ petition challenging the trial court's refusal to condone a five-month delay in filing an application to restore a suit dismissed for default. The High Court found the impugned order harsh, condoned the delay with Rs.1,000 costs to the respondent, and directed the trial court to decide the restoration application within six weeks.

What did the court decide?

Delay of about five months condoned on payment of Rs.1,000 costs to respondent within three weeks; trial court directed to decide the Order IX Rule 4 restitution application within six weeks.

Bharat Dashrath Nikam and Anr. Vs Shri… — Civil Procedure and Limitation | Bombay HC (2024)

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16.wp.7748.22.doc

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7748 OF 2022

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Bharat Dashrath Nikam and Anr...Petitioners

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Versus

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Sahebrao Pundlik Aher..Respondent

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Mr. Mufeez Ansari i/by Mr. Jayendra D. Khairnar, Advocate for Petitioners.

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Mr. Shailesh Kharat, Advocate for Respondent.

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CORAM:MILIND N. JADHAV, J.
DATE:FEBRUARY 02, 2024.

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P.C.:

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1. Heard Mr. Ansari, learned Advocate for Petitioners and Mr.

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Kharat, learned Advocate for Respondent.

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2. After hearing the learned Advocates appearing for the parties

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on 23.01.2024, the following order was passed:-

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“1. Heard Mr. Khairnar, learned Advocate for Petitioner
and Mr. Babar, learned Advocate for Respondent.

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2. Perused the impugned order dated 30.03.2017,
which is at Exhibit-A, page No.10 of the Writ Petition.

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3. Application filed for seeking condonation of delay
in filing restitution Application under Order IX Rule 4 of the
Civil Procedure Code, 1906 came to be dismissed.

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4.Incidentally, the learned Trial Court has
appreciated the evidence placed on record by the Applicant on
medical grounds of himself and the learned Advocate
appearing for the Applicant.

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5.That apart, it is pleaded that Applicant No.2, the
sister of Applicant No.1 is an illiterate lady and due to her
family responsibility did not attend the date on which original

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suit was listed before the Trial Court. It was pleaded that the
delay caused of approximately five months was not deliberate.
That apart, there was evidence which was brought on record
during the course of examination of the pendency of suit
during the contentious period about the husband of the
Applicant No.2 being suffering from allergic asthma and being
bed-ridden for two to three months.

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6. In this aforesaid background, the learned Trial
Court held that there is no medical certificate placed on record
which would enable the party to prove that there was indeed a
medical ailment. The Application seeking condonation of delay
did not mention the grounds, however Application seeking
restoration did mention the aforesaid grounds. Hence learned
Trial Court has held that delay has not been explained and
mentioned in the Application seeking condonation of delay and
therefore it is found that there is no reason the condone the
delay.

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7. Prima facie, I am of the opinion that the impugned
order dated 30.03.2017 passed in the facts and circumstances
is extremely harsh and deserves to be set aside. I am inclined
to accept the reasons for condoning the delay of 5 months.
However learned Advocate Mr. Babar would submit that
Advocate Mr. Shailesh Kharat appears for the Respondent.
Hence he would submit that this Court be pleased to place the
matter next week for passing any further orders.

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8. At request of Mr. Babar, stand over to 30th January,
2024. To be placed under the caption ‘for orders’.”

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3. Mr. Kharat would make two-fold submissions. He has drawn

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my attention to the Application seeking restitution which is at page
No.24 of the Writ Petition and would submit that adequate reasons as
also the averments have not been made in the Application. I have
perused the said Application and I find that the reasons stated in
paragraph No.4 by the Applicant who is a woman and mother are
adequate and deserve to be considered.

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4. Next he would submit that the Application having been considered by the learned Trial Court, the impugned order be

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16.wp.7748.22.doc

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sustained. In that regard, I am of the opinion that the Applicants i.e.
Petitioners before me cannot be non-suited and in view the Application
made as also the reasons stated thereunder, I am inclined to set aside
the impugned order and allow the Application filed for seeking
condonation of delay for filing the Restitution Application under Order
IX Rule 4 of the Code of Civil Procedure, 1908.

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5. Needless to state that in view of the fact that the original Suit was filed in the year 2015 and has remained pending on the record and file of the learned Trial Court for the past 9 years, the Writ Petitioners are therefore directed to pay costs of Rs.1,000/- for the delay to the Respondent, which shall be paid within a period of three weeks from today. Receipt of payment of costs shall be placed on record before the learned Trial Court.

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6. In view of the above observations and directions, delay stands condoned and the learned Trial Court is directed to hear the Restitution Application as expeditiously as possible and within a period of 6 weeks from today and pass a reasoned order in accordance with law.

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7. With the above directions, Writ Petition is disposed.

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[ MILIND N. JADHAV, J. ]

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Ajay

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Digitally signed by AJAY AJAY TRAMBAK TRAMBAK UGALMUGALE UGALMUGALE Date: 2024.02.02 18:26:28 +0530

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Bharat Dashrath Nikam and Anr. v. Shri. Sahebrao Pundlik Aher

Case brief

What is this about?

What did the court decide?

Bharat Dashrath Nikam and Anr. v. Shri. Sahebrao Pundlik Aher

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

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