1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4177 OF 2004 Mr.Amborse D.Mahankale. ..Petitioner. V/s. Mr.Abdul Raub.Mithumuya Raj & Ors. ..Respondents. Mr.A.M.Joshi for petitioner. Mr.S.M.Oak for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 17, 2009. DATE : JANUARY 17, 2009. DATE : JANUARY 17, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Oak waives notice for Respondent No.1. As short question is involved, Petition is taken up for hearing forthwith by consent. 3. This Petition under Article 227 of Constitution of India takes exception to the Judgment and Order passed by the 6th Ad-hoc Additional District Judge, Pune, dated 8th January, 2004 in Misc.Civil Appeal No.723 of 2003, whereby the lower Court has allowed the Application for condonation of delay in filing the appeal against the exparte decree 2 dated 24th October, 2002. 4. For the nature of order that I propose to pass it is not necessary to elaborate all events that led to the passing of the impugned order. Suffice it to observe that exparte decree was passed on 24th October, 2002. The Court below has recorded rightly that the factum of service of summons cannot be challenged in the proceedings under consideration. However, the correctness of that position will have to be tested in appeal, if it were to be admitted. For the present, Court was called upon to condone the delay of more than one year in filing appeal against the exparte decree. The only reason that has been recorded in the impugned Judgment is that the Court should take liberal approach and exemplary cost would meet the ends of justice. Indeed, the Court is expected to take liberal approach but not so liberal so as to condone delay of over one year, even if it were held to be a conscious delay. If the litigant is not diligent in pursuing the matter, for the reasons best known to him, the Court cannot come to the aid of such litigant. In the penultimate paragraph of the impugned Judgment, on the other hand, the lower Court has clearly recorded that the Respondent/Applicant took calculated risk in allowing 3 the suit to proceed exparte against him. If it is so, the indulgence shown in paragraph-8 by the lower Court in the same Judgment to such litigant would obviously be an inconsistent approach. 5. Be that as it may, what was relevant to be considered by the lower Court is the factum asserted by the Respondent/Applicant that he had no knowledge about passing of the exparte decree and which became known to him for the first time on 12th September, 2003. There is absolutely no adjudication with regard to the correctness of the said stand though challenged by the Petitioner. It is only thereafter, the Court can proceed to consider whether it is a case of showing further indulgence to the Respondent/applicant inspite of adverse finding against him, so as to condone delay of almost one year. All these aspects will have, in the first place, to be considered by the Court who exercises discretion and passes discretionary order. The reasons which would have weighed with the said Court cannot be supplemented by this Court in exercise of writ jurisdiction. That exercise will have to be done at the first instance by the District Court. 6. Accordingly, this Petition is allowed. 4 Impugned Judgment and Order is set aside. Instead, Misc. Civil Appeal No.723 of 2003 is restored to the file of 6th Adhoc Additional District Judge, Pune, to reconsider the same on its own merits in accordance with law, uninfluenced by the observations in the impugned Judgment or for that matter the present Judgment. 7. The parties shall appear before the District Court on 30th January, 2009, on which date, he may proceed to hear the parties on the basis of pleadings already filed on record and finally dispose of the application not later than 13th February, 2009. 8. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)