IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO.7221 OF 2020

WITH

SECOND APPEAL STAMP NO.1858 OF 2019

WITH

CIVIL APPLICATION NO.7222 OF 2020

DEVLALI PRAVARA MUNICIPAL COUNCIL

THROUGH CHIEF OFFICER AND OTHERS

VERSUS

SHAIKH IBRAHIM BALAM (DECEASED)

THROUGH HIS LEGAL REPRESENTATIVES

AND ANOTHER

…..

Advocate for Applicants/Appellants : Mr. D. R. Markad

Advocate for Respondents No.1-A to 1-EE : Mr. R. R. Karpe

Advocate for Respondent No.2 ; Mr. Joyeb I. Shaikh

Advocate for Respondent No.3 : Mr. V. S. Bedre

…..

CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 01-10-2021.

ORDER :

1.

Civil Application No.7221 of 2020 has been filed for condonation

of delay of 180 days in filing second appeal. The applicants/appellants

are the original defendants No.1 to 3. Present respondents No.1 and 2

are the original plaintiffs who had filed suit for perpetual injunction,

recovery of possession, mandatory injunction and mesne profits. The

said suit was filed before learned 2^nd Joint Civil Judge, Junior Division,

Rahuri, District Ahmednagar. It came to be partly decreed on 21-03-

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CA 7221-2020, SAST 1858-2019, CA 7222-2020

2011. The present appellants had challenged the said Judgment and

decree in Regular Civil Appeal No.197 of 2011 before District Court,

Ahmednagar. The said appeal was heard by learned Adhoc District

Judge-6, Ahmednagar, and was dismissed on 19-04-2018. Hence,

the present appellants intended to file second appeal, however,

there is delay of 180 days.

2.

The applicants have contended that no regular Chief Officer

was appointed to the Municipal Counsel Devlali Pravara and only the

additional charge was with Chief Officer, Shirdi Municipal Counsel

and for the other administrative problems they could not approach

the Advocate for preparing second appeal.

3.

The application has been strongly opposed by the legal heirs of

respondent No.1 i.e. respondents No.1/A to 1/EE and respondents

No.2 and 3. It has been contended that administrative problems

cannot be the reason for not preferring a second appeal. Though

that may be one of the consideration, yet the applicants have not

explained as to why the in-charge Chief Officer could not have taken

the action to file second appeal. Therefore, no reasonable ground

much less sufficient has been shown for condoning the delay.

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CA 7221-2020, SAST 1858-2019, CA 7222-2020

4.

At the outset, it is to be noted that the appeal before the First

Appellate court appears to have been filed within limitation. Only

the delay is to approach this Court that means the appellants are not

habitual as such to commit delay. They have put forward a reason

that no regular Chief Officer was appointed for the Municipal Council

and the charge was kept with Chief Officer of another Municipal

Council. The chart has been given as to who had charged with

whom and what was the period of the said charge. Though in-

charge Chief officer is also having all the powers and rights to

exercise the same powers of the regular Chief Officer, yet those

administrative problems can be considered and taking into

consideration the delay that has been caused i.e. 180 days, the

same deserves to be condoned.

5.

With consent of both the parties, the matter was taken up for

admission immediately.

6.

Heard learned Advocate Mr. D. R. Markad for

applicants/appellants, learned Advocate Mr. R. R. Karpe for

respondents No.1-A to 1-EE, learned Advocate Mr. Joyeb I. Shaikh

for respondent No.2 and learned Advocate Mr. V. S. Bedre for

respondent No.3. In order to cut short, it is stated that all of them

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CA 7221-2020, SAST 1858-2019, CA 7222-2020

have made submissions in support of their respective contentions.

7.

It can be seen that the original plaintiffs No.1 and 2 had

initially filed the suit for perpetual injunction simpliciter in respect of

agricultural land bearing Gut No.641/1 admeasuring 1 H 55 R

situated in Devlali Pr