SHIVANAND KALYANAPPA SOLSHE Vs. PRASHANT SHIVAJI SURVASE

JUDGEMENT

(1.) Present review has been filed by the original appellant under Sec. 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 for the review of Judgment and order passed by this Court in Second Appeal No.171 of 2019 on 13/3/2019, whereby the Second Appeal was dismissed in limine, at the stage of admission itself, holding that no substantial question of law has been raised. It will not be out of place to mention here that the present applicant had approached Hon'ble Apex Court by filing Special Leave to Appeal (C) No.12966 of 2019 and the liberty was granted to the applicant/appellant by order dtd. 2/8/2019 by Hon'ble Apex Court to file review.

(2.) Heard learned Advocate Mr. S.G. Chincholkar for the applicant and learned Advocate Mr. P.K. Deshmukh for respondent Nos.1 to 5.

(3.) It has been vehemently submitted on behalf of the review applicant that the applicant/appellant is the original defendant No.2, who had filed the Second Appeal challenging the Judgment and order passed by learned Principal District Judge, Osmanabad in Miscellaneous Civil Application No.15/2017, which was preferred for condonation of delay in filing First Appeal; as there was delay of 03 years 07 months and 21 days in filing Regular Civil Suit. By the said Miscellaneous Civil Application and thereby filing First Appeal the present applicant intended to challenge the ex- parte Judgment and Decree passed in Special Civil Suit No.136/2011 by learned 5th Joint Civil Judge Senior Division, Osmanabad on 5/6/2013, whereby the suit for partition, separate possession and cancellation of the sale deed holding that the said sale deed is not binding on the share of the plaintiffs came to be decreed and the sale deed in favour of present applicant/appellant dtd. 13/10/2011 executed by original defendant No.1 was held to be not binding on the original plaintiffs-present respondent Nos.1 to 4. The said application for condonation of delay before the First Appellate Court came to be rejected on 21/6/2018. The appellant had purchased agricultural land to the extent of 06 H 40 R situated from village Murta, Tq. Tuljapur, Dist. Osmanabad for a consideration of Rs.9,30,000.00. He had issued public notice in the newspaper. He had taken all the precautions while purchasing the suit property from original defendant No.1. In the suit, when the present applicant was made as defendant No.2 he appeared in the matter after the notice was served on him, however, he had not engaged any Advocate, since he was under the impression and a representation was made by the original defendant No.1 that he will solve the family matter and there will not be a problem for the present applicant. He did not participate in the litigation, but defendant No.1 did not keep his promise. The matter was decided ex parte against the present applicant. Applicant had absolutely no knowledge about the decision in the matter. He came to know it for the first time on 17/1/2017 and thereafter he had applied for the certified copies and approached the First Appellate Court within 15 days from the date of the knowledge. However, there was delay of 03 years 07 months and 21 days. The learned Principal District Judge, Osmanabad rejected the application and, therefore, by way of Second Appeal the applicant had approached this Court, however, by order dtd. 13/3/2019 this Court had also disposed of the Second Appeal holding that no substantial question of law, as contemplated under Sec. 100 of the Code of Civil Procedure, have been raised. In fact, there is error apparent on the face of the record by this Court. This Court ought to have taken liberal approach while deciding the said Second Appeal. Now, the Hon'ble Apex Court has given liberty to file review application and accordingly the applicant is before this Court. The applicant has every hope of success in his Second Appeal and, therefore, the earlier order passed by this Court deserves to be reviewed.