1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 71 /2010 (Suresh Ganpat Hajare (Mali) vs. Pralhad Hajare (Mali) and others ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... CORAM : SMT.VASANTI A. NAIK, J. DATED : 12th October, 2010. Heard Mr Sachin Deshpande, the learned counsel for the appellant. 2. The appellants are the original defendants. The suit was filed by the plaintiff for partition and separate possession of their share in the suit property. The plaintiff claimed that he had 1/7th share in the suit property. The defendant no.1/ appellant no.1 was the father of the plaintiff and the defendant nos. 2 to 5 were his step brothers. The defendant no.6/appellant no.6 was the step mother of the plaintiff. It was the case of the plaintiff that his father appellant no.1 had executed sale deeds of several properties in favour of appellant no.2-Suresh/defendant no.2 though the plaintiff had a joint share in the suit properties. The defendants 1 and 3 to 6 filed their written statement and resisted the claim of the plaintiff. They, however, admitted the relationship with the plaintiff. They denied that the defendant no.1 had purchased several properties from the 2 joint family income. It was the case of the defendant nos.1 and 3 to 6 that the suit properties were the self- acquired properties of defendant no.1. They sought for the dismissal of the suit. The defendant no.2/ appellant no.2 Suresh did not file any written statement. Hence the suit proceeded ex-parte against him. 3. The trial Court on an appreciation of evidence tendered by the plaintiff decreed the suit of the plaintiff. The Court held that the evidence of the plaintiff remained unchallenged as the defendants remained absent at the time of evidence and did not adduce any evidence. 4. The defendants filed an appeal before the first Appellate Court against the judgment dated 6.11.2000. As there was some delay in filing the appeal, they filed an application for condonation of delay in filing the appeal. It was stated by the defendants in the application for condonation of delay in filing the appeal that the defendant no.2 Suresh was looking after the matter for and on behalf of the other defendants and when the case was fixed for evidence he was suffering from enteric fever and was, therefore, not able to remain present in the Court. According to the defendants/ appellants their counsel did not inform them about the progress of the matter and hence they were unaware of the passing of the ex-parte judgment and decree. They 3 stated in the application that they became aware of the judgment and decree on 5.5.2001 after the plaintiff came to their village along with the Bailiff of the Court. Thereafter, according to the appellants they came to Malegaon Court to meet their counsel and became aware from the Clerk that the judgment was passed in their case on 6.11.2000. It is the case of the appellants that they immediately applied for the certified copies of the judgment and had filed the First Appeal along with an application for condonation of delay on 4.6.2001. 5. The plaintiff/respondents denied the statements of facts made in the application for condonation of delay. The first Appellate Court on perusal of the record and on hearing the learned counsel for the parties, dismissed the application for condonation of delay in filing the appeal. 6. The order passed by the first Appellate Court dismissing the application for condonation of delay on 29.7.2002 is just and proper and is based on a proper appreciation of the pleadings and the material on record. The first Appellate Court came to a conclusion that the statement of facts made in the application for condonation of delay were false and incorrect. The first Appellate Court perused the record of the trial Court to observe that the defendant no.2-Suresh could not have looked after the matter for and on behalf of the other defendants as it 4 was apparent from the record that Suresh had not filed the written statement and only the defendant no.1 and defendant nos. 3 to 6 had filed it. Even after the evidence was recorded the trial Court with a view to grant an opportunity to the appellants/ defendants to defend the case, issued a notice to the defendants to remain present before the Court on 6.11.2000. The said notice was duly served on the appellant no.3 -Ramesh and the other appellants refused the service of the said notice issued by the trial Court on 8.10.1999. The receipt of the notice by appellant-Ramesh, prior to the passing of the judgment by the trial Court and the refusal of the notice issued by the trial Court by the other appellants, according to the first Appellate Court, rightly showed that the defendants/ appellants had deliberately remained absent before the Court though they were aware of the stage of the suit at that juncture. These facts, according to the first Appellate Court clearly showed that Suresh was not entrusted with the duty of conducting the suit for the other appellants as the matter had proceeded ex-parte against him since he had not filed any written statement. The first Appellate Court held that the grounds stated by the appellants in the application for condonation of delay were false and imaginary. Since the grounds stated in the application on condonation of delay were false and baseless, the first Appellate Court held that the delay in filing the appeal could not be condoned. 5 7. The reasons recorded by the first appellate Court for rejecting the application for condonation of delay are just and proper and, in fact, the condonation of delay application is rejected because the appellants had approached the first Appellate Court with a false case and the statements of facts made in the application were falsified by the record of the trial Court. Since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed with no order as to costs. JUDGE sahare