Case Note & Summary
The petitioner, Govind Jagalpure, challenged the judgment and order dated 21 November 2017 passed by the learned District Judge-1, Udgir, in Misc. Civil Appeal No. 7 of 2015, which dismissed the appeal and upheld the common order passed by the learned Civil Judge (J.D.), Udgir, in Misc. Civil Application No. 2 of 2008. The background facts are that late Gangadhar Jagalpure, father of the petitioner and others, had instituted Regular Civil Suit No. 262 of 2000 against respondents No.1 to 4 seeking a declaration that a registered sale deed dated 8th April 1999 was void and not binding on the family. During the pendency of the suit, Gangadhar died on 15th December 2000. The petitioner and his brother Pandurang filed an application for bringing themselves on record as legal representatives, which was allowed on 11th July 2001. However, the suit was dismissed for default on 11th July 2001 itself. Subsequently, the petitioner and Pandurang filed an application for restoration of the suit, which was allowed on 9th January 2002. The suit was then transferred to another court. On 21st June 2007, the suit was dismissed for want of prosecution. The petitioner and Pandurang filed an application for setting aside the dismissal order, but it was dismissed. They then filed an application for setting aside the abatement of the suit along with an application for condonation of delay. The learned Civil Judge dismissed both applications, holding that the delay of about 7 years was not satisfactorily explained. The appeal against that order was also dismissed by the District Judge. The High Court, in the present writ petition, examined whether the lower courts had exercised their discretion properly. The court noted that the petitioner had knowledge of the suit proceedings and had participated earlier. The explanation that the petitioner was not aware of the death of the plaintiff and the subsequent proceedings was not accepted. The court held that the discretion exercised by the courts below was not perverse or arbitrary and did not warrant interference under Article 227 of the Constitution. The petition was dismissed.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The court considered whether the explanation for delay of 7 years in applying to set aside abatement constituted sufficient cause. The petitioner claimed ignorance of the suit and death of the plaintiff, but the court found the explanation unsatisfactory as the petitioner was aware of the suit and had not taken steps. Held that the discretion exercised by the lower courts was not perverse or arbitrary (Paras 2-10).
Issue of Consideration
Whether the learned District Judge was justified in dismissing the appeal and upholding the dismissal of the application for condonation of delay in taking out the application for setting aside the abatement of the suit.
Final Decision
The writ petition is dismissed. Rule is discharged. No order as to costs.
Law Points
- Condonation of delay
- Sufficient cause
- Abatement of suit
- Setting aside abatement
- Limitation
Case Details
2021 LawText (BOM) (04) 9
Writ Petition No. 8337 of 2018
Mr. S.V. Suryawanshi for petitioner, Mr. A.R. Joshi for respondents No. 1 to 4
Govind S/o Gangadhar Jagalpure
Laxmibai W/o Baburao Pawar @ Upase and others
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Nature of Litigation
Civil writ petition challenging the dismissal of an application for condonation of delay in seeking to set aside abatement of a suit.
Remedy Sought
The petitioner sought to set aside the order dismissing the application for condonation of delay and the application for setting aside abatement, and to restore the suit.
Filing Reason
The petitioner's father had filed a suit which abated upon his death, and the petitioner sought to set aside the abatement after a delay of about 7 years.
Previous Decisions
The learned Civil Judge dismissed the application for condonation of delay and the application for setting aside abatement. The learned District Judge dismissed the appeal against that order.
Issues
Whether the delay of about 7 years in filing the application for setting aside abatement was sufficiently explained.
Whether the discretion exercised by the lower courts in dismissing the applications was perverse or arbitrary.
Submissions/Arguments
The petitioner argued that he was not aware of the death of the plaintiff and the subsequent proceedings, and therefore the delay should be condoned.
The respondents argued that the petitioner had knowledge of the suit and had participated earlier, and the explanation for delay was not satisfactory.
Ratio Decidendi
The discretion exercised by the courts below in dismissing the application for condonation of delay was not perverse or arbitrary, and the explanation for delay was not sufficient. Therefore, no interference under Article 227 of the Constitution is warranted.
Judgment Excerpts
The challenge in this petition is to the judgment and order dated 21st November 2017 passed by the learned District Judge-1, Udgir, in Misc. Civil Appeal No. 7 of 2015, whereby the learned District Judge was persuaded to dismiss the appeal and uphold the common order passed by the learned Civil Jude (J.D.), Udgir, in Misc. Civil Application No. 2 of 2008 thereby dismissing the application for condonation of delay in taking out the application for setting aside the abatement of Reg. Civil Suit No. 262 of 2000 and also dismissing the application for setting aside the abatement.
Procedural History
Late Gangadhar Jagalpure filed Regular Civil Suit No. 262 of 2000. He died on 15th December 2000. The petitioner and his brother were brought on record as legal representatives. The suit was dismissed for default on 11th July 2001, restored on 9th January 2002, and again dismissed for want of prosecution on 21st June 2007. Applications for setting aside dismissal and abatement were filed. The Civil Judge dismissed the applications on 30th April 2015. An appeal was filed, which was dismissed on 21st November 2017. The present writ petition was filed challenging that order.
Acts & Sections
- Limitation Act, 1963: Section 5
- Code of Civil Procedure, 1908: Order 22 Rule 9
