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2019 DIGILAW 1463 (BOM)

Sudhakar Prabhakar Mankar v. Vasant Lalji Masne

2019-06-25

V.M.DESHPANDE

body2019
JUDGMENT : V.M. Deshpande, J. 1. Heard learned counsel Shri. S.V. Sohoni for the appellant and Shri. U.N. Vyas for the respondents. The present appeal is admitted on following substantial question of law: "Whether the learned Ad-hoc District Judge-1, Akola was right in dismissing the Misc. Judicial Case No. 170 of 2016 for condonation of delay in preferring the appeal?" 2. With consent of both the parties, this appeal is taken up for final hearing forthwith looking to the nature of the question involved in the second appeal. 3. The appellant is original plaintiff, who filed suit for permanent injunction against respondents that he cannot be dispossessed from the suit property without following due process of law. 4. The respondent contested the suit. The learned Civil Judge Junior Division, Balapur in Regular Civil Suit No. 02 of 2007 passed the decree of dismissal of the suit. 5. The original plaintiff being dissatisfied with the dismissal of his suit, preferred an appeal before the appellate court. However, the appeal was barred by limitation. He, therefore, filed an application under Section 5 of the Limitation Act for condonation of delay. Said application was registered as Miscellaneous Judicial Case No. 170 of 2016. In the application it was stated that he was under the wrong impression that the period of limitation is 90 days to challenge the judgment. It was submitted that, he, being poor person was not having funds even to pay fees of advocate. With this averment, the application was filed. The application was decided by the present respondent and the learned Ad-hoc District Judge-1, Akola on 18.9.2017 dismissed the application. 6. In my view, poverty can never be the impediment for a litigant to seek justice from the court of law. The reason regarding his sufficiency of financial status it appears from the impugned order was not seriously disputed before the Court below. Even otherwise, in my view, the delay was not so enormous to deny the opportunity to the applicant, who is an agriculturist to protect the possession over the suit land from where he earns his bread and butter. Hence, I pass the following order: ORDER (i) By answering the substantial question of law, that the appellate Court has committed an error in not condoning the delay. (ii) The order passed by Ad hoc District Judge-I, Akola dated 18.9.2017 in Misc. Hence, I pass the following order: ORDER (i) By answering the substantial question of law, that the appellate Court has committed an error in not condoning the delay. (ii) The order passed by Ad hoc District Judge-I, Akola dated 18.9.2017 in Misc. Judicial Case No. 170 of 2016 is hereby set aside. (iii) District Judge Akola is directed to register the appeal. By consent of both the parties, they shall appear before the Ad hoc District Judge-I, Akola on 10.7.2019 so that there need not be issuance of notice on the appeal on merit. (iv) The learned Ad hoc District Judge-I, Akola is directed to decide the appeal on its own merits by giving opportunity of hearing to both the sides within a period of limitation of one year from 10.07.2019. (v) With this, appeal is allowed and disposed of.