Shrirang Digambar Potdar v. Madhavrao Sambhaji Phugnar

{1}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD CIVIL APPLICATION NO. 13991 OF 2022 IN SECOND APPEAL (ST) NO. 22730 OF 2022 SHRIRANG DIGAMBAR POTDAR

VERSUS

MADHAVRAO SAMBHAJI PHUGNAR ...

Advocate for Applicant : Mr. P.P. Mandlik Advocate for Respondent : Mr. S.V. Deshmukh ....

CORAM : RAJESH S. PATIL, J.

DATE : 19th December, 2022 PER COURT :

1.

This Civil Application is fled for condoning the delay of almost six and half year in fling Second Appeal.

2.

The present applicant is the son of original plaintif. The original suit was fled by the present applicant through his father (as gaurdian) in the year 2006, for declaration of ownership and perpetual injunction. The said suit was dismissed by the judgment and decree dated 2nd November, 2007.

3.

The said judgment and decree was challenged by way of an Appeal before the District Court. The Appeal was also dismissed on 9th December, 2015.

{2} 4.

Against the dismissal of Appeal the present Second Appeal was fled on 25th August, 2022, alongwith delay condonation application, praying therein delay of approximately six and half year be condoned.

5.

The reason for condonation of delay is stated that the present appellant - Shrirang was not having knowledge of Appellate Court judgment and order dated 9th December, 2015. So also, it is stated that there was no communication to the plaintif. It is further submitted that, plaintif - Shrirang has received notice from Tahasildar dated 7th July, 2022, stating that defendant - Madhav has fled application for mutation of his name on the basis of Court decree in Regular Civil Suit No. 47 of 2006, on enquiry for the frst time, the plaintif to came to know that, his appeal R.C.A. was dismissed without hearing him and it was decided against a dead person i.e. his guardian/father - Digambar on 9 th December, 2015, whereas, his father/guardian who has fled the suit and Appeal expired on 1 st September, 2014.

It is further submitted that, plaintif immediately applied for certifed copies on 10 th August, 2022, which was received on 12th August, 2022 and only thereafter Second Appeal was fled. It is further submitted that, delay is not intentional and the plaintif is lawful owner and possessor of the

{3} suit land on the basis of registered sale-deed his name is recorded by passing mutation entry. Therefore, in the interest of justice the Civil Application should be allowed and the delay be condoned. 6.

Learned Counsel for the applicant relied upon few citations to buttress his submissions :

i.

Miscellaneous Application No.665 of 2021 in SMW© No. 3 of 2020 in Re : Congizance for extension of Limitation by Hon'ble Supreme Court in pandemic. ii.

Bhivchandra Shankar More Vs. Balu Gangaram More and Ors., in (2019) 6 SCC 387.

iii.

S. Ganesharaju (dead) thr. LRs and Anr. Vs. Narasamma (dead) thr. LRs and Ors., in (2013) 11 SCC 341. iv.

N. Balakrishnan Vs. M. Krishnamurthy decided on 3rd September, 1998 reported in Judis.Nic.in. 7.

Learned Counsel for the respondent - original defendant opposes this Civil Application and stated that, a party which comes to the Court with unclean hands should not be heard and application needs to be dismissed. The learned Counsel for the respondent further submitted that, the grounds stated for condoning delay, as to decree been passed against the dead person is incorrect. He stated that, the present applicant had

{4} immediately fled an Amendment Application before the lower Court after the death of his father. Thereafter, his advocate made submissions on his behalf and Appeal of the applicant was dismissed on merits. The learned Counsel for the respondent also stated that, the applicant had knowledge about the passing of the decree on the day the Appeal was dismissed, and the applicant is now trying to blame probably his lawyer of Appellate Court. However, the delay condonation application is silent in this regard as to who had not informed the applicant about passing of the decree in lower Appellate Court. The learned Counsel for the respondent also relied upon two citations :

i.

Basawaraj and Anr. Vs. The Spl. Land Acquisition Ofcer passed in Civil Appeal No. 6974 of 2013 SCC.

ii.

Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi & Ors. passed in Civil Appeal No. 7696 of 2021 SCC.

8.

I have carefully considered the submissions of both the learned Counsel and gone through the delay condonation application and the reply fled to the Civil Application. 9.

The delay condonation application casually states in paragraph No.2.3 "the plaintif - Shrirang was not having knowledge about the judgment dated 9th December, 2015, there

{5} was no communication to the plaintif.

The plaintif - Shrirang has received notice from Tahasildar Loha, dated 7th July, 2022..."

10.

The applicant has stated one more ground for condoning the delay in paragraph No.2.4 he states that, ".... the plaintif came to know that his appeal R.C.A. was dismissed without hearing him and it was decided against a dead person i.e. his guardian/father - Digambar on 9th December, 2015, whereas, his father/guardian who has fled suit and appeal expired on 1st September, 2014". 11.

Therefore it appears that, the plaintif has taken up two grounds for condoing the delay. The frst ground is that, there was no communication to the plaintif about passing of the Appellate Court decree and the same is as vague as possible. It does not state as to who has not informed him about passing of the decree. While arguing this application for delay condonation, the learned Counsel for the applicant stated that, it was his lawyer who had not communicated about passing of the decree to the applicant. 12.

Learned Counsel for the applicant was put a question by this Court as to whether the applicant went back to his lawyer of the Appellate Court, after he got knowledge about passing of the

{6} decree by the Appellate Court and did he make any kind of enquiry as to why his lawyer had not informed about passing of the decree. The learned Counsel for the applicant was not able to give satisfactory reason as to why this act was not done by his client. Therefore it is unbelievable that a person who has fled this application for condonation of delay, who is a graduate has not contacted his advocate during the pendency of the Appeal and has not enquired as to the status of his pending Appeal before the District Court. No explanation has been stated in the Civil Application. In the reply to the Civil Application the respondent had stated that, these are incorrect submissions made in the afdavit and there is no sufcient cause for condoning the delay. Therefore, the frst ground is not convincing me, for condoing the delay. 13.

The second point for condoning the delay as regards the decree that has been passed by the Appellate Court in the year 2015 is passed being against a dead person. This fact is proved incorrect as the advocate for respondent has pointed out that, after death of father of applicant, the applicant himself preferred an application to bring him on record, before Appellate Court. Learned Counsel for respondent also pointed out the amended memo fled before the District Court, which shows that the present applicant

{7} was already on record before the lower Appellate Court. 14.

Therefore, the second ground taken for condoning the delay that decree was passed against a dead person is absolutely false and incorrect. Therefore, there is no sufcient ground made out by the applicant to condone the delay.

15.

The applicant has relied upon four (4) judgments. The frst one judgment passed in Suo Motu Writ Petition (Civil) No. 3/2020. In the Suo Motu Writ the Supreme Court excluded the period of limitation for any suit, appeal, application or proceeding, during the period from 15th March, 2020 till 28th February, 2022. Therefore what was excluded by the Supreme Court was almost a period of two years. The delay caused in the present matter is almost six and half years therefore, the judgment passed in Suo Motu Writ Petition does not help the applicant. 16.

The second judgment is the judgment of Bhivchandra More (supra) wherein the delay of four years ten months eight days was allowed, as the reason for delay was a wrong remedy of fling the application under Order 9 Rule 13 of Civil Procedure Code. After the delay of Four years ten months eight days, immediately on next date on withdrawal of the application Order 9 Rule 13 of CPC,

{8} thereafter Civil Appeal was fled, which was also withdrawn and thereafter Civil Appeal challenging the original decree was fled. Therefore, it was considered as the sufcient cause for condoning the delay in that matter, hence the facts in Bhivchand More (supra) are diferent than the present matter.

17.

The third judgment referred by the applicant is of S. Ganesharaju (supra). In this judgment the delay of 53 days was condoned by the Supreme Court. Therefore this judgment would not help the applicant, as in the present case there is delay of more than six and half years.

18.

The fourth judgment is the judgment of N. Balakrishnan (supra). In the said judgment there is delay of 883 days and reason for condoning delay was that, the application preferred for setting aside the ex-parte decree was dismissed for default and thereafter the application to set aside the said order was preferred after the receipt of execution application. However, in the present case on oath a false statement was made by the applicant that the Appeal was decided against a dead person, therefore, even this judgment does not support the present applicant.

19.

Learned Counsel for the respondent has referred two

{9} judgments. First judgment of Majji (supra), wherein a delay of 1011 days was not condoned on the ground that no sufcient cause has been shown for condoning the delay and even by imposing the condition delay should not be condoned.

20.

Next judgment preferred by the learned Counsel for the respondent is of Basawaraj (supra), wherein a delay of fve and half years was not condoned on the ground that no sufcient cause is shown which prevented the litigant to approach the Court on time. Condoning the delay without any justifcation, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.

21.

The Hon'ble Supreme Court in the judgment of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Ors., reported in (2013) 12 SCC 649, refused to condone delay of seven years in fling appeal. 22.

Therefore, I hereby conclude that the person who has come to the Court with unclean hands and made false statements on oath by stating that the Appellate Court passed a decree against the dead person should not be shown any kind of leniency from

{10} this Court. A huge delay of more than six and half years therefore is not condoned.

23.

Therefore this Civil Application for condonation of delay is dismissed.

24.

Pending applications, if any, do not survives and same stand disposed of.

[ RAJESH S. PATIL ] JUDGE