Shri. Sumit Nainmal Palrecha v. Smt. Tara Suresh Oswal And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 265 OF 2024 Sumit Nainmal Palrecha ....Applicant (Orig. Plaintiff) V/s.

Smt. Tara Suresh Oswal and Ors.

....Respondents (Orig. Defendants) __________________________________________________ Mr. Rajesh Parab, for the Applicant.

Mr. M.S. Nevshe, for the Respondents.

__________________________________________________ CORAM : SANDEEP V. MARNE, J.

Dated :

26 June 2024.

P.C. :

1) Revisionary jurisdiction of this Court is invoked under Section 115 of the Code of Civil Procedure challenging Order dated 20 February 2024 passed by the learned District Judge-I, Vadgaon Maval, District-Pune, by which application for condonation of delay of 1911 days in filing the Appeal to challenge judgment and decree dated 30 August 2018 in Regular Civil Suit No.223/2011 has been allowed.

2) I have heard Mr. Parab, the learned counsel appearing for the Applicant and Mr. Nevshe, the learned counsel appearing for Respondent No.1.

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3) After having considered the submissions canvassed by the learned counsel appearing for the parties, it is seen that the suit came to be decreed on 30 August 2018. The decree was put in execution by the PlaintiffDecree Holder and the Defendants were served with the notices in the execution proceedings, who presented themselves before the Executing Court on 9 October 2021 admitting receipt of summons. Thereafter, it appears that Defendants continued to oppose the execution proceedings by engaging the same Advocate, who had represented them before the Trial Court in the suit. In the execution proceedings, when the bailiff attempted to take possession of the suit premises, objection was raised by some of the Defendants by raising a false plea that they were not aware about any decree of the Trial Court.

Plaintiff therefore moved application for execution of possession warrant. At this stage, an application was filed on behalf of the Defendants before the Executing Court on 14 December 2023 seeking time of 30 days for vacating the suit premises. By that application, the Defendants undertook to vacate the suit premises and handover possession thereof to the Plaintiff on 12 January 2024.

4) However, instead of acting on the promise made before the Executing Court, the Defendants took a volte-face and filed Appeal before the District Judge challenging the decree of the Trial Court. For condonation of delay of 1911 days in filing the Appeal, Defendants filed application at Exhibit-1 seeking condonation of delay.

5) Perusal of the application for condonation of delay filed by the Defendants/Respondents would indicate that following justification was given for seeking condonation of inordinate delay of 1911 days. 2 of

7) The appellant being illiterate and having less knowledge of law and blind faith on appointed advocate, however the delay instructed advocate failed to appear and proceed with the matter and hence due to nonrepresentation of appellant by their advocate judge order were passed against the appellant and judgment dated is 30/08/2018 in R.C.S. No.223/2011.

8) Even after judgment and decree dated on 30/08/2018 the advocate remain silent and the said judgment and decree was not conveyed to the appellants.

9) It is pertinent to note that appellant no.3 was in kalyan jail for six month in special case no. 188/2023 field by her wife arti vishal oswal under indian penal court and (sc and set prevention of atrocities act). This was an another reason that the appellant and h is family was in under pressure to make bail fo the appellant no.3 however while filing appeal their was in advertent delay hence this application to condone the said delay.

10) That the appellant no.3 further submit that his wife filed a criminal complaint against him in which he got bail after six month in spl case no.188/2023, after this appellants no.3 came to know that in Regular Darkhast CASE NO.: 06/2023 filed by respondent and in this a warrant issue against the appellants to vacate the suit premises. This warrant was shocked appellant no.3 and other and they were force by respondent also through police of lonavala to vacate the suit premises. Therefore appellants is facing lots of problem in their life and the suit property is their basic need for day today life and to survive their life and hence allow this delay condonation application.

11. Even it is pertinent to note that appellants no.1 to 10 are totally helpless and they were misguided through all the way and even respondent is also forcefully making pressure through municipal corporation, through police station lonavala to vacate the suit premises and hence this deal application. 6) The District Judge has proceeded to allow the application for condonation of delay of 1911 days by the impugned order dated 20 February 2024 by imposing costs of Rs.20,000/- on Defendants/Respondents. The learned District Judge has recorded following reasons in para-4 of the order: 3 of

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Heard the parties. Perused the record. It prima-facie appeared that as per the appellants, the Ld. Counsel appearing for them has not informed them about the passing of Judgment and Decree. It further appeared that one of the appellant was in jail and other appellants were engaging for obtaining his bail. It further appeared that appellants were in possession of the suit premises and till now they have not handed over the possession of suit premises. It further appeared that as per the appellants their previous Counsel was in fault and it is settled law that no party should suffer for the fault of his Counsel.

While going through the documents on record, I find that there is prima-facie case in favour of the appellants showing that they should be granted an opportunity by way of 1st appeal which is the matter of right for them and because of mistake of Counsel, they should not put to suffer. In case of Nimesh Dilipbhai Brahmbhatt vs. Hitesh Jayantilal Patel, R/Special Civil Application N o. 6547 of 2020, dated 02/05/2022, by observing the decision of Hon'ble Apex Court and other Courts delay was condoned. In the present case in hand also, I find that the appellants deserves an opportunity and therefore, the delay is liable to be condoned. However, considering the fact that the other party is also sufferer, it is subject to come cost.

7) Perusal of the findings recorded by the learned District Judge would indicate that the impugned order suffers from the vice of perversity of non-application of mind. The learned District Judge has recorded 'primafacie' finding about the Advocate not informing about passing of decree to the Respondents. It is incomprehensible as to how a 'prima-facie' finding could be recorded while deciding the application for condonation of delay finally. Secondly, the learned District Judge has erroneously accepted the justification sought to be canvassed by the Respondent about the Advocate not informing about the passing of the decree. The learned District Judge ought to have appreciated the fact that the Respondents engaged the same Advocate in execution proceedings, who had represented them before the Trial Court.

assuming that the said Advocate did not inform Defendants about passing of the decree, the factum of Respondents appearing before the Executing Court on 9 October 2021 would indicate acquisition of knowledge of the decree atleast on 9 October 2021.

ought to have examined the reasons for not filing the Appeal atleast after 9 October 2021. The Appeal alongwith the application for condonation of delay appears to have been lodged in the District Court on/or about 6 January 2024. Thus, there is delay of more than 2 years and 2 months in filing the Appeal even after acquisition of knowledge of passing of decree on 9 October 2021. The learned District Judge has however not considered this aspect while condoning inordinate delay of 1911 days by recording vague findings. What is also glossed over by the District Judge is the conduct of the Defendants/Respondents. The Defendants/Respondents showed willingness to vacate the suit premises by 12 January 2024 and thereby prevented the Executing Court from executing the warrant of possession. Instead of acting on the promise, they filed Appeal before the District Court. Such conduct on their part clearly disentitled them from seeking equitable relief of condonation of delay.

8) The learned District Judge appears to have been influenced by the contention of the Respondents that one of them was in jail and that the other Respondents were engaged in securing bail for him. However, the exact period during which the concerned Respondent was in jail and the date of his release was not pleaded in the application. From the averments in the application, it appears that Appellant No.3 was in jail only for a period of 6 months, that too during the year 2023. However, the Respondents were regularly appearing before the Executing Court through their Advocate from 9 October 2021 till they filed Appeal before the District Judge. If the they were able to oppose the execution proceedings in 2023, it is incomprehensible as to how the arrest of one of them could come in the way of filing Appeal before the District Judge. It also appears that the 5 of

Respondents have lost possession of the suit premises as the decree has already been executed.

9) In my view the learned District Judge has improperly exercised the jurisdiction in condoning the inordinate delay of 1911 days in absence of any proper explanation. The Court ought to have been mindful of the fact that the delay is not insignificant but was inordinate running into 5 1⁄2 years. Furthermore, application was premised on false statement that Defendants were not aware about passing of the decree. The factum of Defendants appearing in execution proceedings on 9 October 2021 was suppressed in the Application. The impugned order dated 20 February 2024 passed by the District Judge is thus indefensible and is liable to be set aside. 10) Civil Revision Application accordingly succeeds. Order dated 20 February 2024 passed by the District Judge-1, Vadgaon Maval, District-Pune is set aside and the application for condonation of delay, as well as Appeal filed by the Respondents before the District Court, stands dismissed. 11) With the above observations, the Civil Revision Application is allowed with no order as to costs.

12) The Respondents would be at liberty to withdraw the amount of costs of Rs.20,000/- deposited in the District Court. Digitally signed by NEETA SHAILESH SAWANT Date:

2024.06.29 15:16:57 +0530 [SANDEEP V. MARNE, J.] NEETA SHAILESH SAWANT 6 of