CHETAN GORADHANDAS KHUMBAWAT Vs. JAYWANT MORESHWAR PATIL

JUDGEMENT

(1.) This is an application seeking condonation of delay of 3 years, 3 months and 11 days in fling the Second Appeal. The Applicants along with a partnership frm had initially fled Regular Civil Suit No.93 of 2008 for declaration, injunction and for specifc performance. It was the case of the Applicants that the original Defendants had executed the agreement dtd. 25/3/1993 to transfer, sell and alienate the suit property in favour of the Applicants (Plaintiff Nos.2 and 3). Lateron Plaintiff Nos.2 and 3 had reassigned their rights in favour of Plaintiff No.1 vide document dtd. 27/7/1993. After completion of the pleadings, the Trial Court has framed the issues. Defendants objected to the maintainability of the Suit on the ground that the suit of unregistered partnership frm is not maintainable. The said objection caused the Trial Court to hear the issue of maintainability as preliminary issue. The Trial Court has decided the preliminary issue in favour of the Defendants by holding that the suit is not maintainable and accordingly, it was dismissed vide Order dtd. 28/4/2015.

(2.) Being aggrieved, the Applicants (Plaintiff Nos.2 and 3) have preferred Regular Civil Appeal No.178 of 2015. However, the said appeal came be dismissed on merits by Judgment and Order dtd. 27/4/2017. It is informed that original Plaintiff No.1 had also fled an appeal challenging the dismissal of the suit.

(3.) In above background, this Second Appeal is fled along with the delay condonation application. The delay sought to be condoned in terms of Sec. 5 of the Limitation Act by stating that the Applicants have made out a suffcient cause for the delay caused in fling Second Appeal. Precisely, it is submitted that the proceedings of the trial court and the frst appellate court were looked after by Applicant No.1-Chetan Khumbawat only. Applicant No.2-Chetan Shah was not looking after the proceedings, as Chetan Khumbawat was entirely paying attention to the litigation. It is the Applicants' contention that after dismissal of the frst appeal, Applicant No.1- Chetan Khumbawat, who was looking after the proceedings had renounced the World and under psychological and emotional conditions, left his home abandoning the proceedings without the knowledge of Applicant No.2. He was also not traceable for more than 2 years, which has caused delay. Later on, Applicant No.1- Chetan Khumbawat returned and applied for certifed copy, handed over to the Advocate, but again went to Ashram and thus, it has added further delay. The reason for delay has been canvased in paragraphs 6 and 7 of the Application, which are reproduced herein below :-