BHAGWAN Vs. JAYSINGRAO

JUDGEMENT

(1.) Rule. Rule made returnable forthwith with consent of counsel for parties.

(2.) The respondent is the original plaintiff who has filed suit for declaration that he is the owner of field Gat No.15/A admeasuring 90R and that the petitioner/defendant be restrained from dispossessing his possession. In that suit the plaintiff filed an application for temporary injunction. The trial Court by its order dated 08/07/2015 allowed the application for temporary injunction. The defendant filed miscellaneous appeal alongwith an application for condonation of delay of about 128 days. This application was opposed by the original plaintiff and by the impugned order the appellate Court has refused to condone delay in filing such appeal.

(3.) Shri S. V. Deshmukh, learned counsel for the petitioner submitted that in the application for condonation of delay it had been specifically stated by the petitioner that his counsel had not communicated the order passed by the trial Court below Exhibit-5. The petitioner was informed that as and when orders would be passed in the suit, the same would be informed to the petitioner. Though on 05/11/2015 the respondent had come to the suit property along with the police, he could not obtain the possession. He submitted that after getting knowledge about the order passed by the trial Court, application for certified copy was made and the appeal was filed. According to him the petitioner had not signed on the acknowledgment indicating service of the caveat filed by the respondent. It was thus submitted that by taking a liberal view the delay in filing the appeal deserves to be condoned. It was submitted that even if some delay could be attributed to the petitioner, that by itself was not sufficient to refuse to condone the delay. He placed reliance on the decisions in N. Balakrishnana vs. M. Krishnamurthy (1998) 7 SCC 123 and Ashok Balaji Ratan vs. Nagpur Improvement Trust, Nagpur 2004(3) Mh.L.J. 659. It was thus submitted that the delay deserves to be condoned.