1. civil wp 4010-22.

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R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4010 OF 2022

Shamrao Piraji Kadam

Age : 78, Occ. : Retired,
R/o. Vidyadeep, Tilak Path,
Pradhikaran, Nigadi, Pune. .. Petitioner
Versus
1. Prakash Shivaji Chavan
Age : 44, Occ. : Agriculture,
R/o. Jaihind Colony, Vishrambaug,
Sangli.

2. Mina Rajendra Tandale

Age : 49, Occ. : Household,
R/o. Rukmini Market, Wanleswadi,
Tal Miraj, Dist. Sangli.

3. Lenisha Shamrao Kadam

Age : 52, Occ. : Household,
Miraj Road, Wanleswadi,
Tal. Miraj, Dist. Sangli. .. Respondents
....................
 Mr. S.S. Patwardhan i/by Mr. Bhooshan R. Mandlik for the
Petitioner
 Mr. Surel Shah a/w Mr. Abhay A. Jadhavar i/by Mr. Sachin K.
Hande for the Respondents
...................

CORAM : MILIND N. JADHAV, J.

Reserved on : APRIL 13, 2022
Pronounced on : MAY 30, 2022

JUDGMENT:

1. Heard.

2. The Petitioner has filed the present Writ Petition to

challenge the Judgment & Order dated 20.07.2021 passed by the

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learned District Judge - 6, Sangli in Misc. Civil Application No. 213 of

2017. The Petitioner filed application seeking condonation of delay of

30 months and 14 days in filing a substantive First Appeal before the

learned Appellate Court. The date of exparte judgment & decree in

Special Civil Suit No. 188 of 2013 is 05.03.2015. The Petitioner filed

the First Appeal for setting aside the aforementioned exparte decree

on 21.09.2017. Along with First Appeal, he filed Misc. Civil

Application No. 213 of 2017 seeking condonation of delay on the

ground that a fraud was committed on the Petitioner and the

Petitioner came to know about the passing of exparte decree

immediately before filing the First Appeal.

3. The relevant facts which are necessary for deciding the

present Writ Petition are as follows:-

3.1. On 22.11.2013 Respondent Nos. 1 and 2 (Plaintiffs) filed a

suit for specific performance of a contract dated 14.08.2013 against

the Petitioner (Defendant No. 1). Respondent No. 3 (Defendant No.

2) is the wife of the Petitioner, which the Petitioner denies. According

to the Petitioner, his wife has expired long back. The summons in the

aforementioned Suit No. 188 of 2013 were served by the Respondent

Nos. 1 and 2 (Plaintiffs) on the Petitioner (Defendant No. 1) and

Respondent No. 3 (Defendant No. 2) on an address at Village

Wanleswadi. The Petitioner contends that he does not reside or has

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any house at this village. The Petitioner all along has been residing in

Pune.

3.2. The subject matter of this suit was specific performance of

agreement of sale of suit property dated 14.08.2013 between the

Petitioner and Respondent No. 3 on one hand and the Respondent

Nos. 1 and 2 on the other hand. The Petitioner denies knowledge of

this agreement and also states that he does not know Respondent Nos.

1 and 2; further he has not executed any such agreement. The

agreement is notarized by a Notary Public at Sangli. According to the

Petitioner, Respondent No. 3 whom he does not know or have ever

met in his life has been set up as his wife by the Respondent Nos. 1

and 2 and the three Respondents herein have colluded and conspired

with each other and committed a massive fraud to usurp the suit

property described in paragraph 2 of the petition at Wanleswadi. The

Petitioner is a retired executive engineer from the government

department; he resides in Pune with his two sons after his retirement

in 1997 and is the owner of two immovable properties / land parcels

situated at Wanleswadi within the geographical limits of Sangli Miraj

and Kupwad Municipal Corporation being Gut No. 35/A/A/1/1/B/1/3

admeasuring 284.90 m 2. and Gut No. 35/A/A/1/1/B/1/4

admeasuring 282.04 m2. In 2015 the Petitioner decided to dispose of

the aforementioned two properties and executed a development

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agreement dated 03.03.2015 in favour of G.P. Developers, Sangli

along with power of attorney dated 03.03.2015. The developers

submitted a building plan on 08.07.2015; sanction was obtained from

the Corporation and at present there is a multi-stored building

standing on the said plots. During the construction, Petitioner

executed a registered sale deed dated 07.12.2015 for consideration of

Rs. 87,75,000/- in respect of both the said plots and the construction

thereupon. As on date 80% of the sanctioned construction of the

aforesaid plots has been completed according to the Petitioner.

3.3. According to the Petitioner sometime in the month of August

2017 he paid a visit to Sangli during which time he learnt that a suit

for specific performance was filed against him by Respondent Nos. 1

and 2. Petitioner appointed an advocate to obtain the copy of the suit

proceedings and came to know that Respondent No. 3 was shown as

his wife in the suit proceedings; there was a notarized agreement of

sale in respect of the suit property dated 14.08.2013; suit proceedings

were served upon Respondent No. 3 (alleged wife) who received the

same on behalf of herself and the Petitioner at an address in

Walneswadi; the suit proceeded in the absence of the Petitioner;

Petitioner was not aware about the suit proceedings as he was living in

Pune.

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3.4. On 05.03.2015 the aforementioned suit was decreed exparte

against the Petitioner (Defendant No. 1) by the learned trial court.

4. Mr. Patwarhdan, learned counsel appearing for the

Petitioner submits that sometime in August 2017 when the Petitioner

visited Sangli, he came to know about the aforementioned exparte

decree. The Petitioner therefore immediately filed an Appeal in the

District Court at Sangli on 21.09.2017 along with the Misc. Civil

Application seeking condonation of delay. He submits that in view of

the strong facts in the present case, the learned Judge ought to have

allowed condonation of delay. He submits that the Petitioner has also

filed a police complaint against the Respondents; investigation has

taken place and a charge sheet has also been filed against the

Respondents; the Respondents were arrested and are presently

released on bail; that the Petitioner did not waste any time after it

came to his knowledge in August 2017 had immediately approached

the civil court by adopting the appropriate remedy of filing the Appeal;

that the grounds for passing the exparte judgment & decree are very

strong and amount to an imminent fraud played by the Respondents

on the Petitioner; that the Petitioner did not know the Respondents

nor has executed any agreement for sale with / along with the

Respondents and in view thereof, the impugned order dated

20.07.2021 deserved to be set aside and the First Appeal should be

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taken on record of the Court for passing appropriate directions /

order.

5. PER CONTRA, Mr. Shah, learned counsel appearing for

Respondent Nos. 1 and 2 has opposed the present petition on the

ground that against the order rejecting the application for condonation

of delay, the Petitioner ought to have filed a Second Appeal against

the said order. He submits that invocation of this Court's jurisdiction

under Article 226 & 227 of the Constitution is not maintainable; that

when there is a statutory remedy available this Court should not

exercise its writ jurisdiction.

5.1. Mr. Shah further submits that since the Petitioner is now

divested of his right, title and entitlement in the suit property by virtue

of the registered agreement dated 07.12.2015 in favour of G.P.

Developers, the said G.P. Developers through its partners Mahesh

Govind Patil and Baban Lawate are now seized with the rights in the

suit property and have already filed an application before the District

Court at Sangli seeking leave to file the Appeal since the Petitioner has

no locus to file the present writ petition. He submits that the

Petitioner had knowledge about the exparte decree as far back as on

31.07.2017 when he was informed by his purchasers about the decree

but the Petitioner did not take immediate action for almost seven

months until filing of the suit on 16.02.2018; that the Petitioner has

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also not explained the reason for the delay of 40 days from the date of

knowledge in the application and hence, the impugned order has been

correctly passed.

6. I have heard the learned counsel appearing for the

respective parties and perused the record. Submissions made by the

parties are on pleaded lines. At Exhibit "E" (page 46 to the writ

petition) is the Misc. Application No. 213 of 2017 filed by the

Petitioner seeking condonation of delay. In paragraphs 6 and 7 of the

said application the reasons for delay have been adequately explained

by the Petitioner. The facts as seen are extremely gross on the face of

record. The document in favour of the Respondent Nos. 1 and 2

though concerning an immovable property belonging to the Petitioner

(denied by the Petitioner) is not a registered document. The

Petitioner was 74 years old at the time of filing of the suit in 2017.

Respondent No.3 has been shown as his wife by the Respondent Nos.

1 and 2 in the suit which was instituted by them in the year 2013. ...

Petitioner has denied having met or known Respondent No. 3

altogether. Respondent Nos. 1 and 2 have taken the aid of

Respondent No. 3 in serving the Petitioner and obtaining the exparte

decree against the Petitioner. In this entire gamut of proceedings the

suit property never remained idle. The Petitioner in 2015 initially

entered into a development agreement, issued power of attorney and

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subsequently by a registered deed sold the suit property for

consideration. All throughout the suit property was being developed.

If required the Respondent Nos. 1 and 2 could have always

approached the civil court for execution of the decree or for seeking

their substantive rights in the suit property.

7. Perusal of the application clearly shows that adequate

reasons have been given by the Petitioner for seeking condonation of

delay in respect of the period of 30 months 14 days before gaining

knowledge of the impugned exparte decree and for the period of 40

days after gaining knowledge of the exparte decree. The impugned

order while giving reasons in paragraph No. 7 records that the

Petitioner was residing at Sangli at the relevant time. The learned

Judge has come to the conclusion that since in 2015 the Petitioner had

entered into the registered sale deed / transaction with the

developer / purchaser it would appear that the Petitioner used to visit

Sangli. Based on this reason, the learned Appellate Court had

concluded that there is inordinate delay of 30 months and 14 days.

Prima facie the aforesaid findings in paragraph No. 7 are completely

unsustainable and deserve to be set aside on the face of record. There

are no reasons given by the learned Appellate Court to come to the

conclusion that the Petitioner was residing at Sangli at the relevant

time. The record is referred to by the learned Appellate Court but the

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said record will always shown the name of the Petitioner and the

address at Walneswadi. The learned Appellate Court has failed to look

into and consider the reason that Respondent No. 3 whom the

Petitioner denies knowing has been put up as the wife of the Petitioner

by the Respondent Nos. 1 and 2 and she has been served on behalf of

both of them and on the strength of this service the exparte decree has

been passed. These are very strong and significant grounds which

have not been dealt with or reasoned by the learned Appellate Court

while passing the impugned order. In so far as the issue of reasonable

cause for condoning delay is concerned, there is apparent consistency

in the case made out by the Petitioner. In the application seeking

condonation of delay in paragraph Nos. 5 and 6 the reasons have been

given which have not been considered in the impugned order. In the

facts and circumstances of the present case, such reasons ought to

have been considered by the learned Appellate Court. It is also

pertinent to note that Respondent No. 3 who has received service on

behalf of the Petitioner of the suit proceedings filed by the Respondent

Nos. 1 and 2 does not know Marathi; she hails from Kerala and she

has signed the bailiff report on the instructions of Respondent Nos. 1

and 2. The fact that the suit summons was not served upon the

Petitioner stands clearly proved in the present case. The question as to

whether the Petitioner has been defrauded or otherwise will be the

subject matter of the pending proceedings. It is seen that criminal

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action / offence has also been filed against Respondent Nos. 1 and 2.

8. It is seen that the learned Appellate Court has not

considered the fact that the suit summons was never served on the

Petitioner but was accepted by Respondent No. 3 falsely claiming to be

his wife. Due to this the Petitioner had no knowledge about the suit

proceedings as well as the exparte decree. This was the cause for the

delay. Another important aspect of the service of the summons is that

the same was accepted by Respondent No.3 on behalf of the

Petitioner. Hence there was want of knowledge on the part of the

Petitioner about the suit proceedings as well as the exparte decree

resulting in the delay. The Petitioner has also relied upon judgment

dated 06.07.2019 passed by the court of 7th Joint Civil Judge, Senior

Division, Sangli in Regular Civil Suit No. 71 of 2018 in the suit for

declaration and mandatory injunction against Respondent No. 2

declaring that the Petitioner and the Respondent No. 3 are not

husband and wife and the Respondent No. 3 being permanently

restrained from posing as the Petitioner's wife and also not to involve

into any illegal transactions concerning the properties of the

Petitioner.

9. For all the above reasons and in view of the above discussion

and findings, the Writ Petition stands allowed in terms of prayer

clauses (A) and (B) which read as under:-

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"(A) That this Hon'ble Court be pleased to issue a writ of certiorari or

any other appropriate writ, order and / or direction thereby
quashing and setting aside the judgment and order dated 20th of
July 2021 passed by the learned District Judge No. 6 at Sangli in
Civil Miscellaneous Application No. 213 of 2017, Exhibit A hereto;
(B) That this Hon'ble Court be pleased to allow the Petitioner's
application dated 21st of September 2017 filed before the learned
District Court at Sangli being Miscellaneous Civil Application No.
213 of 2017, Exhibit E hereto."

[MILIND N. JADHAV, J. ]

Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2022.05.30
17:57:26 +0530

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