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913-wp-7418-2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.7418 OF 2013

KASHINATH HANMANTRAO GARIBE

..PETITIONER

VERSUS

GUNWANT SHIVLING HAIBATPURE AND OTHERS ..RESPONDENTS

…

Mr. Warad Kedar h/f Mr. Sunil V. Warad, Advocate

for the Petitioner.

Mr. Shriram Deshmukh h/f Mr. D. R. Deshmukh,

Advocate for Respondent No.1.

…

CORAM : S. V. GANGAPURWALA, J.

DATED : 14^th JANUARY, 2022.

PER COURT:-

1.

The present respondent no.1 filed Suit for

declaration of ownership and injunction. The said

Suit came to be decreed ex-parte on 09.02.2000. The

present petitioner filed application for setting

aside ex-parte decree in the year 2005 alongwith

application for condonation of delay bearing Civil

Miscellaneous Application No.12/2008. Initially, it

was numbered as 69/2005. Because of change of

Taluka, the same was subsequently re-numbered as

12/2008. The application for condonation of delay

in filing application for setting aside ex-parte

decree is rejected.

2.

The learned counsel for petitioner submits

that, the petitioner was not served with the Suit

summons. Directly recourse to substitute service

was resorted by the plaintiff by publication in the

local newspaper. The petitioner was serving at

Mumbai. The petitioner was not aware of the decree

passed. The petitioner appeared in the proceeding

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before the Tahsildar in the year 2002, but advocate

of the petitioner did not inform the petitioner

about the decree passed against him. After

petitioner changed his lawyer, he got the knowledge

of passing of ex-parte decree. As such, the

petitioner applied for the certified copies and

thereafter, immediately filed application. The

delay caused is not intentional, but because the

petitioner was not aware of the decree passed.

3.

The learned counsel for respondents

submits that, the Trial Court has considered the

entire evidence threadbare and thereby has rightly

rejected the application for condonation of delay

in filing application for setting aside ex-parte

decree. The delay is of 5 years 5 months and 11

days. The delay is abnormal and inordinate one.

The proceeding before the Tahsildar for mutation in

the year 2002 was filed on the basis of the decree

passed in favour of present respondent no.1. The

petitioner appeared in the said proceeding in the

year 2002 and as such, was aware of the said

decree. Atleast from the year 2002, the present

proceeding ought to have been filed within

limitation. The witnesses of the petitioner have

also not supported the petitioner.

The

contradictory evidence has been led. AW-2 Shivdas

Patil has stated that, the present petitioner was

working at Mumbai upto 2002 and since 2002 he is

residing at his village Neknal, whereas AW-3 Maroti

Kalwar states that, the petitioner was working upto

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year 2006 at Mumbai. The same are contradictory

statements given. The learned Judge has considered

all these aspects and has rightly rejected the

application. No error has been committed while

passing the order.

4.

The decree passed by the Trial Court in

RCS No.196/1996 is an ex-parte decree. It appears

that, the regular summons was not served upon the

petitioner and the petitioner was served by

substitute service by proclamation in the local

newspaper. It has come in evidence that, at the

time the Suit was pending, the petitioner was

residing and serving at Mumbai. Naturally, the

petitioner may not get the knowledge of the decree.

The present respondent no.1/original plaintiff took

up proceedings before the revenue authorities on

the basis of the ex-parte decree passed in RCS

No.196/1996. In the said proceedings, the

petitioner appeared in the year 2002. However,

according to the petitioner, the petitioner could

get the knowledge of the ex-parte decree only after

he changed his lawyer in the revenue proceedings

and thereafter immediately applied for certified

copies and thereafter filed the a