: 1 : 6819-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6819 OF 2011 Sambhaji Madhavrao Kunjir .. Petitioner v/s. Babaibai Dattatray Supekar since deceased through legal heirs & Ors. .. Respondents ......... Mr. S.S. Kulkarni for the petitioner ......... CORAM : R.Y.GANOO, J DATE : 8th SEPTEMBER,2011. P.C. : 1. The petitioner was the defendant in the R.C. Suit No.507 of 1999 in the Court of 13th Joint Civil Judge Junior Division, Pune. The said suit came to be decided by judgment and decree dated 29th July, 2006. The present petitioner claims that he came to know about the judgment and decree passed against him only after the notice in execution application was served upon him in or about 22nd March, 2009. Thereafter, he filed Civil Appeal in the Court of District Judge, Pune. As the filing of the appeal was beyond the period of limitation, the petitioner filed : 2 : 6819-11-wp=.sxw Miscellaneous Application No.335 of 2009 praying that delay in filing the the aforesaid appeal be condoned. That application has been rejected by learned District Judge, Pune by order dated 18th March, 2011. This order dated 18th March, 2011 is challenged in the present petition. 2. I have extensively heard learned advocate Mr. Kulkarni appearing on behalf of the petitioner. It was pleaded across the bar that the suit was being attended to by father of the petitioner, who was one of the defendant. According to the petitioner, a common advocate was engaged and on account of the fact that father was attending to the matter, the petitioner did not take active interest in the matter and on a given date, the father informed the petitioner that the suit has been dismissed. The petitioner claims that only when the application for execution was served upon the petitioner, he learnt that the suit was decreed against the petitioner and others. 3. According to learned advocate for the petitioner, as the father was attending to the matter, the petitioner did not take active part in the litigation and that is how what transpired in the suit was not known to the petitioner. He also submitted that as the father informed the petitioner : 3 : 6819-11-wp=.sxw that the defendant including the petitioner have succeeded, he did not take any further steps and that is how the delay has ensued. Learned advocate Mr. Kulkarni had relied upon following judgments in support of his stand that the Court should be liberal in condoning the delay in filing the proceedings. (i) Collector, Land Acquisition, Anantnag Vs. Katiji, 1987 (0) GLHEL-SC 5643 (Supreme Court of India). (ii)Suresh S/o Premraj Mutha Vs. Municipal Corporation through its Municipal Commissioner, 2008(0) AIJ-MH-136720. (Bombay High Court). 4. I have considered the explanation given by the petitioner in the application as also the judgments relied upon. On the basis of the statements set out in the petition as also across the bar, it is abundantly clear that though the petitioner was a party defendant and against whom there could have been a decree remained totally silence and did not even care to enquire with the father from time to time as to what has happened in the matter. It may be that the petitioner has engaged an advocate who was equally engaged by his father, however that does not absolve the : 4 : 6819-11-wp=.sxw petitioner from keeping track over the litigation. An explanation given by the petitioner that he remained aloof from the said suit is clearly indicative of the fact that the petitioner did not bother to know about the progress in the suit. Be that as it may, after the suit came to be decided and when according to the petitioner he was informed by the father that the defendants including the petitioner have succeeded, minimum that was expected of the petitioner was to contact his advocate and also contact the Court authorities to obtain a copy of the order to know exactly what has happened in the matter. It is not the case of the petitioner that after he was informed about the success in the suit, he called upon the father to take further steps to know as in what way the petitioner is succeeded and other related aspect. Record goes to show that the petitioner kept calm and quite and he has put up the date, namely, 22nd September, 2009 as the date on which date, he came to know about the decision in the suit. In my view, the entire conduct of the petitioner is clearly indicative of the fact that he was totally negligent about attending to the litigation. In my view, simply engaging the lawyer was not sufficient. It was expected of the petitioner that he would keep track with the advocate and keep himself informed as to what is happening in the suit. There is a delay of about 3 years in filing appeal. I am not inclined to take different view than what : 5 : 6819-11-wp=.sxw has been taken by the learned District Judge in the matter of the decision against which this petition has been filed. I am observing this after giving serious thought to the submissions made by the learned advocate for the petitioner as also the judgments relied upon by him. In my view, a person who is interested in protecting his rights has to be vigilant and maximum alertness in the matter should be exhibited, particularly when a dispute is pending in Court. 5. Finally, it was argued by the learned advocate for the petitioner that application could have been granted by the learned District District Judge by directing to petitioner to pay costs. In my view, once the Court has considered the case of the petitioner and has come to the conclusion that there was a negligence on the part of the petitioner, it would not be proper to accept the contention that payment of costs would compensate the other side. This argument advanced by the learned advocate for the petitioner is rejected. For the reasons mentioned aforesaid, no interference is required in the impugned matter. Hence, following order is passed to dispose of the writ petition. : 6 : 6819-11-wp=.sxw ORDER (i) Petition is dismissed at the stage of admission with no order as to costs. 6. After the aforesaid order is passed, learned advocate for the petitioner prayed for stay of the execution of the proceedings. The request is rejected. (R.Y.GANOO, J.)