Bombay High Court
Shri Ashishkant Prabookant Sen vs Shri Jagoba S/O Dashrath Jibhkate on 7 October, 2009
Author: A.B.Chaudhari
Bench: A.B.Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH ; NAGPUR.
WRIT PETITION NO. 3544/2005
PETITIONER: 1. Shri Ashishkant Prabookant Sen,
aged about 60 years, Occ. Service,
R/o. Wali Building, Sitabuldi,
Nagpur.
2. Ashokkant Prabookant Sen,
ig aged about 45 years, Occ. Service,
R/o. Qtr. No. C-977,
Road No. 5, Chhota Dighori,
Barapur (W.B.)
3. Smt. Geeta Banerjee,
Aged about 52 years. Occ.
Household, R/o. Bharat Nagar,
Nagpur.
4. Smt. Deepa Banerjee,
Aged about 50 years, Occ.
Household, R/o. Bharat Nagar,
Nagpur.
5. Smt. Maya Dasgupta,
Aged about 75 years, Occ.
Household, R/o. 14/5-A, Bold Club
Road, Kolkata-33.
6. Smt. Monika Dasgupta,
Aged about 72 years, Occ.
Household, R/o. K-52, Yogi Sagar,
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Boriwali (W), Mumbai-92.
7. Mrs. Namita Dasgupta,
Aged about 68 years, Occ.
Household, R/o. Chaterjee Para,
Nawagi High School, Batanagar,
West Bengal.
8. Mrs. Laxmi w/o. A.K.Sen,
Aged about 57 years, Occ.
Household, C/o. A.K.Sen, Canara
Bank, Sadar Branch, Jabalpur (MP)
ig VERSUS
RESPONDENT:1. Shri Jagoba S/o Dashrath Jibhkate,
aged about 62 years, Occ. Service
2. Kamalkar s/o. Jagoba Jibhkate, aged
about 40 years, Occ. Service
3. Harish Jagoba Jibhkate, aged about
35 years, Occ. Service.
4. Yeshwant Shrawan Jibhkate, aged
about 31 years, Occ. Business
5. Ashok Pandurang Kshirsagar
(expired)
(i) Sanjana Sanjay Shinde, aged about
38 years (Daughter)
(a) Sector 7, Block No. 22, Gujrat
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Refinary Township, Baroda, Gujrat,
(b) Section 7, Block No. 122, I.P.C.L
Township, Baroda, Gujrat
Petition is dismissed against R-5(i)(a)
& 5(I)(b) as per Court's order dt.
2/9/08 by the end of 15/9/08.
(ii) Nilima Narendra Selukar, aged
about 34 years (Daughter), R/o.
Tapovan, Amravati, Tah. &b Distt.
Amravati.
ig (iii) Jotsna Koba Jaipurkar, aged
about 34 years, R/o. Hansapuri,
Dalalpura, Nagpur.
(iv) Ku. Subhangi Ashok Kshirsagar,
Aged about 29 years, R/o. C/o.
Vithalrao Gale, 21-B, Shivngar, Ward
No. 73, Nagpur.
(v) Jitendra Ashok Kshirsagar, aged
about 31 yeaars.
6. Vilas Pandurangji Kshirsagar, aged
about 42 yers, Occ. Business.
Deleted as per order of the Court
dated 29/6/09.
7. Prakash Pandurang Kshirsagar
(expired)
(i) Smt. Tarabai Prakash Kshirsagar,
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aged about 39 years, Occ. Household.
(ii) Dheeraj Prakash Kshirsagar, aged
about 22 years, Occ. Student.
(iii) Priya Prakash Kshirsagar, aged
about 21 years, Occ. Student.
(iv) Sweeti Prakash Kshirsagar, aged
about 19 years, Occ. Students.
From Sr.Nos. (i) to (iv) are represented
by Smt. Tarabai Wd/o Prakash
ig Kshirsgar, being natural guardian.
All R/o. Kshirsgar Bhawan, Near
Gandli's Wada, Mangalwari, Nagpur.
8. Shrikant Vitthalrao Golde, aged about
35 years, Occ. Service
9. Pandurang Ramji Kshirsagar, aged
about 75 years, Occ. Business
Deleted as per order dated 29/6/09
Respondent Nos. 1 to 4 are resident
of Kanhan Water Works Quarter,
Kanhan, Kamptee Distt. Nagpur.
Nos. 5 (iv) to 5(v) both presently C/o.
Vithalrao Gole, Plot No. 21-B,
Shivngar, Nagpur (East).
Nos. 6 to 9 are resident of Juni
Mangalwari, Near Gandilwada,
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Telipura,Nagpur.
10. Jaginder Singh Uberoi (C.A.),
Begambagh, Opposite Red School,
Kadbi Chowk, Nagpur.
11. Pramodkumar Manoharlal Bambi,
Wellcome Colony, Opposite Military
Gate, Near Upasne Maharaj Mandir,
Katol Road, Nagpur.
12. Smt. Meena Pramodkumar Bambi,
Wellcome Colony, Opposite Military
ig Gate, Near Upasne Maharaj Mandir,
Katol Road, Nagpur.
13. Smt. Shrda Naresh Dhande, 8/B, 2nd
Floor, Aradhan Complex, Gokulpeth,
Nagpur.
14. Smt.Sunita Anupam Sharma, Clarke
Town, Nagpur.
15 Harindar Mohanlal Bambi, Clarke
Town, Nagpur.
16 Smt. Pooja Harindar Bambi, Clarke
Town, Nagpur.
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Shri Girish Chaubey, Advocate, for Petitioners Shri Saoji, Advocate, holding for Mr. Anand Parchure, Advocate, for Respondent Nos. 10, 11, 12, 15 & 16 ============================================= ::: Downloaded on - 06/01/2014 00:17:18 ::: 6 CORAM : A.B.CHAUDHARI. J DATE : 07/10/2009
1. Rule. Rule returnable forthwith. Heard finally by consent of parties.
2. In the present writ petition, there is a challenge to the order dated 15/04/1993, passed by the Additional District Jude, Nagpur, in Misc. Civil Application No. 278/1990, filed in a Miscellaneous Appeal under Order 43, Rule 1(d) of C.P.C., whereby the appellate Court dismissed the application for condonation of delay of 6 ½ months in filing the appeal before the appellate Court.
3. In support of the Writ Petition, Mr. Girish Choube, learned counsel for the petitioner argued that there was a delay of 6 ½ months and that was explained in paragraph Nos. 2, 3 & 4 of the ::: Downloaded on - 06/01/2014 00:17:18 ::: 7 application for condonation of delay. The appellate Court has in Paragraph Nos. 5 found that those reasons were not sufficient in order to satisfy the requirement of Section 5 of Limitation Act.
4. The contesting respondents are absent. Mr. Saoji, Advocate, appears for Respondent Nos. 10, 11, 12, 15 & 16.
5. Having heard learned counsel for the parties, and having seen the impugned order, I find that the reasons furnished by the petitioner in the application and in particular, paras 2, 3 & 4 of the application, are quite satisfactory. Some of the petitioners are residing at different and distant places and there is nothing wrong in awaiting the approval of each party for filing the appeal. At any rate, the delay of 6 ½ months is not too much to ::: Downloaded on - 06/01/2014 00:17:18 ::: 8 throw out the matter, without deciding the same on merits. The appellate Court could have compensated the other side by making an order of costs to be paid to the contesting respondents before him. However, now I am not inclined to award any costs.
6. Mr. Choube, learned counsel for the petitioner also relied on the decision of the Supreme Court and argued that the Court could not have touched the merits of the matter while deciding the application for condonation of delay. The point is no more res-integra.
7. In the result, I make the following order.
The impugned order dated 15.4.1993 made by the Additional District Judge, Nagpur, is set aside. M.C.A. No. 278/90 is allowed. Delay in filing ::: Downloaded on - 06/01/2014 00:17:18 ::: 9 the appeal is condoned. The Misc. Civil appeal shall be restored and registered and shall be taken up for final hearing after issuing notices to all the concerned parties.
Writ Petition is accordingly disposed of.
ig JUDGE
Rvjalit
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