Krishnarao S/O Shivramji Shirpurkar v. Vidarbha Irrigation Development Corp. Thr. Exe. Engineer, Lower Wardha Proj. Div., Wardha And Other

906cao396.19.odt 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR CIVIL APPLICATION (CAO) NO. 396 OF 2019 IN CROSS-OBJECTION STAMP NO. 226/2019 IN FIRST APPEAL NO. 1172/2013 (D) Krishnarao s/o Shivramji Shirpurkar V/s V.I.D.C. and others. --------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders.

and Registrar's Orders.

--------------------------------------------------------------------------------------------------------------------------------- Shri P.R.Masurkar, counsel for the Appellant /Cross-objector. Ms Sanskruti Khule, counsel h/f Shri N.M. Gaidhane, counsel for the respondent No.1/V.I.D.C..

Shri I.J.Damle, AGP for the respondent Nos. 2 and 3. CORAM: ARUN D. UPADHYE , J.

DATE: 12-03-2019.

Heard Shri P.R. Masurkar, learned counsel for the appellant/cross-objector.

Learned counsel has submitted that there is delay of 1820 days in filing cross-objection i.e. Cross-Objection Stamp No.226/2019. He further submitted that First Appeal No. 1172/2013 is already dismissed in default. However, the respondent can file the cross-objection, and therefore delay could be condoned and cross-objection be registered. Learned counsel for the respondent No.1/VIDC has submitted that though the First Appeal No.1172/2013 is dismissed in default and not restored, learned counsel for the respondent No.1/VIDC has orally suggested that First Appeal may be restored and delay for filing the cross-objection can be condoned.

Shri I.J. Damle, learned AGP for the respondent Nos. 2 and 3 has strongly objected for condonation of delay as

906cao396.19.odt 2 well as registration of Cross-objection.

After considering the submissions of both the sides, I am of the considered view that when appeal is not pending and already dismissed for want of prosecution, question of condonation of delay and permitting the appellant/cross-objector to file cross-objection does not arise.

Submissions put-forth on behalf of the respondent No.1/VIDC that the First Appeal may be restored and delay may be condoned also cannot be accepted. It appears that respondent No.1/VIDC and appellant/cross-objector has made such submission which is not tenable at all.

Learned counsel for the appellant has relied upon authority reported in 2005 AIR SCW 1712 Hari Shankar Rastogi V. Sham Manohar and others. The facts and circumstances of the case involved in the said authority are not applicable here. In the above ruling, the question whether the cross-objections are maintainable even when the Appeal has been withdrawn was considered. Here in the case at hand, the appeal is already dismissed in default and question of filing crossobjection in the said appeal does not arise. Civil application for condonation of delay as well as cross-objection stamp No. 226/2019 cannot be permitted to be filed and are dismissed accordingly. No order as to costs. JUDGE rkn