SA-581-2014.odt

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 581 OF 2014

Rohinibai Shankarrao Zagade and others

… Appellants

Versus

Darku Murlidhar Jagtap – deceased

through his legal heirs

1-a) Sunita w/o Sanjay Koralkar and others

… Respondents

.…

Mr. D. A. Mane, Advocate h/f Mr. Milind Patil, Advocate for

appellants

Mr. S. B. Kadu, Advocate for respondent No.1

.…

CORAM : R. G. AVACHAT, J.

DATED : 12^th JULY, 2022

PER COURT :-

.

The challenge in this Second Appeal is to the order dated

02.04.2014, rejecting the appellants’ application (No.20 of 2013) for

condonation of delay in preferring first appeal against the judgment

and decree dated 17.08.2006 passed in Regular Civil Suit No. 526 of

2002.

2.

Heard.

The learned Advocate would submit that the issue

involved in the suit and the consequential appeal pertained to the

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appellants’ right, title and interest in the immovable property.

Although he had marked appearance in the suit, his Advocate had

not informed about the progress of the suit. The suit, thus, came to

be decided in his absence. He came to know about the decree having

been passed in the suit only when he received a notice of execution

proceeding thereof. According to the learned Advocate, the lis needs

to be decided on its own merits. He would further submit that the

first appellate Court took a very pedantic view to reject the

application. He, therefore, urged for allowing the appeal remanding

the suit back to the first appellate Court.

3.

The learned Advocate for the respondents would, on the

other hand, submit that delay is of little over 6 ½ years. The same

has not been properly explained. The first appellate Court has given

good reasons for rejection of the delay condonation application. He,

therefore, urged for dismissal of the appeal.

4.

Considered the submissions advanced. True, there is

delay of six years and six months in preferring first appeal against

the judgment and decree passed in R.C.S. No.526 of 2002. The

appellants herein were the defendants in the suit. It was a suit for

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partition and separate possession of the land admeasuring 48R.

From the pleadings itself, the plaintiff admitted that the entire suit

land was in possession of the appellants herein as a lessees.

Moreover, post decree in the suit, one of the appellants purchased

16R land from one of the co-owners. Thus, admitted facts

undoubtedly indicate that if the impugned order is not interfered

with, the appellants would be prejudicially affected in their rights in

the immovable property.

5.

The appellants have put the blame on their Advocate.

They have submitted on affidavit that their Advocate did not inform

them the progress of the suit and consequential decision therein.

6.

The Hon’ble Apex Court vide decision dated 05.02.2019

in the case of The Commissioner, Mysore Urban Development

Authority vs S. S. Sarvesh in Civil Appeal No.1463 of 2019, in para

19 and 20, has observed thus:-

“19. Indeed, this case reminds us of the subtle observations

of the learned Judge – Vivian Bose, J., which His Lordship

made in one of the leading cases of this Court in Sangram

Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425.

20. Vivian Bose J., speaking for the Bench, in his distinctive

style of writing made the following observations while dealing

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with the case arising out of Order 9 and reminded the Courts

of their duty while deciding the case. The observations are apt

and read as under:

“A code of procedure must be regarded as such. It

is procedure something designed to facilitate justice and

further its ends: not a penal enactment for punishment

and penalties; not a thing designed to trip people up.

Too technical a construction of sections that leaves no

room for reasonable elasticity of interpretation should

therefore be guarded against (provided always that

justice is done to both sides) lest the very mean