Sharad Trimbak Kulkarni v. Shriniwas Sharad Kulkarni And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 903 CIVIL APPLICATION NO.2189 OF 2013 IN SAST/2839/2013 SHARAD TRIMBAK KULKARNI

VERSUS

SHRINIWAS SHARAD KULKARNI AND OTHERS ...

Advocate for Applicant : Shri A.D. Sonkawade h/f Shri Shinde Abasaheb D.

Advocate for Respondent nos.1 & 3 : Shri K.B. Autade Respondent no.2 served.

CORAM: V.L. ACHLIYA, J.

DATE: 02.08.2019 PER COURT :

1] This application is filed seeking condonation of delay of 422 days in filing second appeal.

2] Heard learned counsel appearing for the applicant and respondents.

3] In brief, it is the contention of learned counsel for the applicant / appellant that the delay caused in filing appeal occurred mainly due to old age and illness of the applicant. It is submitted that at the time of filing the application, the applicant was 73 years old and suffering from various ailments. The suit

- 2 - is filed by his son seeking partition and separate possession. The execution of decree would result into serious consequences and at this old age, as the applicant would be required to vacate the residential premises. It is submitted that there are conflicting decisions rendered by the Courts below.

4] On the other hand, learned counsel appearing for the respondents opposed the application with contention that the cause assigned is not sufficient to condone the delay. It is submitted that the reasons assigned for condonation of delay are false and concocted. 5] On due consideration of the submissions advanced and the overall facts of the case, I am of the view that the delay deserves to be condoned in the light of broad principles laid down by the Apex Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649]. In case delay is condoned, no serious prejudice would be caused to the applicant. On the contrary, if delay is not condoned, there is every likelihood that a meritorious matter may be rejected for technical reason. I am, therefore, inclined to allow the application.

- 3 - 6] Accordingly, the civil application is allowed in terms of prayer clause [B]. Delay condoned. Appeal be registered.

7] After removal of office objections and registration of appeal, the appeal be listed for admission on 3.9.2019.

8] Shri K.B. Autade Advocate waives service of notice for respondent nos.1 & 3.

(V.L. ACHLIYA, J.) ndk/c281933.doc