Smt. Meena W/O Jagdish Ramteke And Another v. Shri Sriram S/O Shankar Gajbhiye And Others

-1IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.396 OF 2015 APPLICANTS:-

1. Smt. Meena W/o Jagdish Ramteke (Plaintiffs) Aged about Major, Occu: Nil, (On R.A.) R/o Rani Bhosle Nagar, Sakkardara, Nagpur.

2. Smt. Shalu Wd/o Rajesh Kurewar Aged about- Major, Occ: Nil, R/o Shaniwari Ward, Pauni, Tah. Pauni, Distt. Bhandara.

... VERSUS ...

RESPONDENTS:-

1. Shri Sriram S/o Shankar Gajbhiye, (Defendants) Aged about- Major, Occ: Agriculturist.

(On R.A.)

2. Ramkrushna S/o Shankar Gajbhiye Aged about- Major, Occ: Agriculturist.

3. Smt. Kiran Wd/o prabhakar Gajbhiye Aged about- Major, Occ: Agriculturist.

3(a) Snehal S/o Prabhakar Gajbhiye Aged 14 years, Occ: Education.

3(b) Ku. Mega S/o Prabhakar Gajbhiye, Aged 12 years, Occ: Education.

Respondent No.1 to 3(b) all R/o Mohali, Mohadi, Tah. Nagbhid, Distt. Chandrapur.

Respondent No.3(a) & 3(b) are Minor, through the Mother resp. no.3 being Guardian of Deft. No.3(a) and 3(b).

4. Manohar S/o Shankar Gajbhiye, Aged about- Major, Occ: Service, R/o. Talodhi (Balapur), Tah. Nagbhid, Distt. Chandrapur.

-2- ******************************************************************************************************* Mrs. Bindiya J. Murkute, Advocate for the Appellants. Shri C.N. Funde, Advocate for the Respondents. ******************************************************************************************************* CORAM : S.M. MODAK, J.

DATE : 22 nd SEPTEMBER , 2021 ORAL JUDGMENT:- Heard learned Advocate for the appellants/original plaintiffs and learned Advocate for the respondents/original defendants. 02] This Court while admitting the appeal on 13th January, 2017 has framed following substantial question of law- "Whether the lower Appellate Court has committed an error in rejecting the application for condonation of 106 days caused in filing an appeal dismissing the suit for partition?" 03] With the assistance of both the learned Advocates, I have perused the order passed by learned District Judge-4, Chandrapur on 26th November, 2014. By the said order, the first Appellate Court refused to condone the delay of 106 days caused in preferring the first appeal. The present appellants who are the plaintiffs in Reg. Civil Suit No.

20/2005 have filed the said delay condonation application. Their suit for partition, possession and declaration came to be dismissed on 14th September, 2010. The first Appellate Court observed that there is no sufficient reason for condonation of delay.

-3right in arriving at that conclusion, with the assistance of both the learned Advocates, the pleadings are perused. It consist of the application and reply filed on behalf of respondent No.4. The appellants had given following explanationa. On 14th September 2010- the judgment was pronounced by the trial Court.

b. On 15th September, 2010- plaintiffs got knowledge about dismissal.

c. Ten days thereafter- plaintiffs met local Advocate at Nagbhid and paid the expenses for certified copy. d. On 8th November, 2010- plaintiffs contacted their Advocate and got certified copy from their Advocate. e. Plaintiffs contacted their Advocate at Nagpur and plaintiffs were asked to arrange for at least 5,000/- towards the fees.

f. Till 30th January, 2011- plaintiffs could not arrange for the fee.

g. On 30th January, 2011- plaintiffs were told by their Advocate that period of one month is already over. h. On 1st February, 2011- delay condonation application was filed.

05] Only respondent No.4 in the reply has denied all the averments and according to him, the plaintiffs were negligent and they

-4were sleeping over their rights. Respondent No.4 has alleged mala fide on the part of the plaintiffs.

06] The first Appellate Court in the impugned judgment has scrutinized the averments from the pleadings and concluded that no sufficient cause has been shown. While doing scrutiny of that, the first Appellate Court has emphasized on diligent attitude of the parties who are seeking for condonation of delay.

CONCLUSION 07] If the averments in the application and reply are perused, we may find that the plaintiffs have not sat idle. They have followed up with the Advocate at Nagbhid and at Nagpur. Ultimately, the litigants have to depend upon the legal advice for completion of the procedure required to be followed before proceedings is filed. It is also true that the litigants who have to approach to the Court have to arrange for the money for the legal fees. These steps are the normal steps which were taken in any usual Court proceedings.

08] Now, what is meant by sufficient cause depends upon facts of each case. Sufficient cause can be interpreted as a cause which is found to be sufficient, reasonable for not approaching the Court in time. No one can dispute that certified copy is required and services of the legal experts though not mandatory, but are required. If this is the scenario, how one can say that these are not the bona fide reasons . The litigants

-5who have failed in getting a relief from the Court, they will not sit idle and they will be eager to approach the higher Court for getting the reliefs in their favour. I do not find any mala fide on the part of the plaintiffs in approaching the first Appellate Court belatedly. So, I find sufficient reason for condonation of delay. The first Appellate Court has taken rigid approach. It needs to be corrected. 09] The respondents are required to be compensated to a certain extent by imposing costs. The appellants to pay costs of Rs.5,000/- to the respondents. Accordingly, I answer the question in the affirmative and proceed to pass the following order:-

ORDER

1) The appeal is allowed.

2) The order dated 26th November, 2014 passed by Court of District Judge-4 in M.C.A. No.19/2011 is set aside.

3) The M.C.A. No.19/2011 preferred by the appellants for condonation of delay of 106 days is allowed.

4) The first appeal of the appellants be admitted.

5) The appellants to pay the costs of Rs.5,000/- to the respondents.

6) The first Appellate Court to verify whether the costs has been paid by the appellants.

-67) Both the parties are directed to appear before the District Court, Chandrapur on 11th October, 2021.

8) Learned Advocate for the respondents to instruct his clients to appear before that Court on that date without waiting for the notice.

9) The first Appellate Court to pass appropriate order on the appeal on the first date and then to decide the appeal as per the merits, as early as possible.

10) The appeal is disposed of in above terms.

11) Pending application, if any, stands disposed of. (S.M. MODAK, J.) vijay