BASANTSING MEHERSING BINDRA Vs. GURDAYALSING MEHERSING BINDRA

JUDGEMENT

(1.) THE petitioner and the respondent are real brothers. The petitioner had instituted Special Civil Suit No.50 of 1971 against the respondent/ brother in the Court of learned Civil Judge, Senior Division of Aurangabad for partition and separate possession. While this suit were pending, the present respondent instituted regular Civil Suit No.577 of 1978 and impleaded the present petitioner as the defendant. The present petitioner filed an application for stay to the proceedings in Regular Civil Suit No.577 of 1978 till his Special Civil Suit No.50 of 1971 was decided. The application was rejected on 8th July, 1983 and being aggrieved by the said order, he approached this Court in Civil Revision Application No.456 of 1983. By judgment and order dated 23rd January, 1987 the said civil revision application was allowed and the hearing of Regular Civil Suit No.577 of 1978 was stayed till the hearing and disposal of Special Civil Suit No.50 of 1971.

(2.) SPECIAL Civil Suit No.50 of 1971 came to be decided on 29th December, 1999 and being aggrieved by the said decision the plaintiff filed Appeal No.30 of 2000 and the defendant/respondent filed Appeal No.42 of 2000 before the District Court at Aurangabad. These appeals have been decided and the second appeals are pending before this Court.

(3.) IT was contended by the petitioner that, he was under the bona fide belief that the proceedings in Regular Civil Suit No.577 of 1978 were stayed indefinitely and for the first time, he came to know that the Regular Civil Suit No.577 of 1978 was decided on 28th January, 2002. The learned Counsel for the petitioner now states that the said date is 28th January, 2003. Be that as it may, the only question that is required to be considered is, whether the delay caused was properly explained by the petitioner and whether he had made out good and sufficient reasons for condoning the delay. The learned Advocate relied upon the decision of the Supreme Court in the case of M.K. Prasad v. P. Arumugam, 2001 (6) S.C.C. 176 and Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao & others, 2002 (3) S.C.C. 195.