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2019 DIGILAW 1445 (BOM)

Bhagwan v. Jaysingrao

2019-06-24

A.S.CHANDURKAR

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JUDGMENT : A.S. Chandurkar, J. 1. Rule. Rule made returnable forthwith with consent of counsel for parties. The challenge in the present writ petition is to the order dated 22/04/2015 passed by the Appellate Court refusing to condone delay in filing a miscellaneous appeal for challenging the order passed on the application for temporary injunction by the trial Court. 2. The respondent is the original plaintiff who has filed suit for declaration that he is the owner of field Gat No. 15/A admeasuring 90R and that the petitioner/defendant be restrained from dispossessing his possession. In that suit the plaintiff filed an application for temporary injunction. The trial Court by its order dated 08/07/2015 allowed the application for temporary injunction. The defendant filed miscellaneous appeal alongwith an application for condonation of delay of about 128 days. This application was opposed by the original plaintiff and by the impugned order the appellate Court has refused to condone delay in filing such appeal. 3. Shri S.V. Deshmukh, learned counsel for the petitioner submitted that in the application for condonation of delay it had been specifically stated by the petitioner that his counsel had not communicated the order passed by the trial Court below Exhibit-5. The petitioner was informed that as and when orders would be passed in the suit, the same would be informed to the petitioner. Though on 05/11/2015 the respondent had come to the suit property along with the police, he could not obtain the possession. He submitted that after getting knowledge about the order passed by the trial Court, application for certified copy was made and the appeal was filed. According to him the petitioner had not signed on the acknowledgment indicating service of the caveat filed by the respondent. It was thus submitted that by taking a liberal view the delay in filing the appeal deserves to be condoned. It was submitted that even if some delay could be attributed to the petitioner, that by itself was not sufficient to refuse to condone the delay. He placed reliance on the decisions in N. Balakrishnana vs. M. Krishnamurthy (1998) 7 SCC 123 and Ashok Balaji Ratan vs. Nagpur Improvement Trust, Nagpur 2004(3) Mh.L.J. 659. It was thus submitted that the delay deserves to be condoned. 4. Shri P.B. Patil, learned counsel for the petitioner supported the impugned order. He placed reliance on the decisions in N. Balakrishnana vs. M. Krishnamurthy (1998) 7 SCC 123 and Ashok Balaji Ratan vs. Nagpur Improvement Trust, Nagpur 2004(3) Mh.L.J. 659. It was thus submitted that the delay deserves to be condoned. 4. Shri P.B. Patil, learned counsel for the petitioner supported the impugned order. He referred to the reply filed to the said application and submitted that the petitioner was present before the trial Court on various dates as well as on 08/07/2015 when temporary injunction came to be granted. In the reply it was specifically averred that copy of the caveat was served on the petitioner and there was no denial in that regard on oath. The appellate Court rightly considered all the relevant aspects and refused to condone the delay. As the petitioner did not approach the Court with clean hands and did not disclose the material aspects, the delay was not liable to be condoned. He relied upon the decisions in Jahed Naziruddin S/o. Saheeruddin and ors. vs. State of Maharashtra and ors. 2014(2) Mh.L.J. 933 : [2014(2) ALL MR 58] and Abdulla Umar Haji Ismail Merchant and ors. vs. Subai Mura Rabari and ors. 1998(3) Mh.L.J. 91 : [1998(4) ALL MR 614] in that regard. 5. Heard the learned counsel and perused the material placed on record. The trial Court on 08/07/2015 allowed the application for temporary injunction in favour of the respondent. It is seen that as per the roznama of the proceedings the petitioner and his counsel was present before the trial Court on almost every date when the application for temporary injunction was heard. His presence is also noted on 08/07/2015. Thereafter it is seen that the caveat filed by the respondent was served on the petitioner on 21/07/2015. In the reply filed to the application for condonation of delay a specific statement to that effect has been made in paragraph 5 thereof. Said reply has been filed on 07/01/2016 along with the affidavit. There is no counter affidavit filed to the same by the petitioner denying receipt of the caveat. Further, in the application for condonation of delay it is stated by the petitioner that on 05/11/2015 the respondent had come to the suit property alongwith the police Authorities. Further, the petitioner was also arrested on 12/11/2015 after which an offence was registered against him with regard to the suit property itself. Further, in the application for condonation of delay it is stated by the petitioner that on 05/11/2015 the respondent had come to the suit property alongwith the police Authorities. Further, the petitioner was also arrested on 12/11/2015 after which an offence was registered against him with regard to the suit property itself. It is only on 25/11/2015 that the application for certified copy came to be moved. 6. From the aforesaid it can be seen that the petitioner's presence in Court on various dates including the date when the order was passed itself is a factor clear from the record. His stand that he was not informed by his counsel of the passing of the order therefore becomes doubtful. The statement on oath made by the respondent after filing caveat that the envelope was duly served on the petitioner has not been denied on oath before the appellate Court. It is in view of these factors that the appellate Court has refused to condone the delay on the ground that there was lack of diligence on the part of the petitioner. When the aforesaid conduct is considered in the light of the ratio of the decisions relied upon by the learned counsel for the parties, it is found that the appellate Court did not commit any error in refusing to condone the delay. The explanation sought to be furnished by the petitioner was not supported by the averments in the application. Said explanation was also belied by the material on record. In the light of the petitioner's presence on various dates before the trial Court coupled with his failure to deny receipt of the caveat on oath are factors that have been taken into consideration by the appellate Court. I do not find that there is any illegality committed by the appellate Court in rejecting the application moved by the petitioner for condoning the delay. Hence, I am not inclined to interfere in writ jurisdiction. The Writ Petition is therefore dismissed. No costs.