1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 7043 OF 2009 IN SECOND APPEAL ST. NO. 13479 OF 2009 Shaikh Shakil Anwar s/o Shaikh Kasambhai .. APPLICANT VERSUS Kauusalyabai w/o Rajram Motkar & another .. RESPONDENTS Mr. S.S. Kazi, Advocate holding for Mr. Z.M. Pathan, Advocate for the applicant. Mr. V.D. Sapkal, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 3 rd February, 2010. PER COURT : 1 This is an application by appellant seeking condonation of delay of 1825 days occurred in presenting the appeal. 2 Suit was presented by the respondents claiming decree of partition and separate possession which came to be dismissed by the 2 trial court in view of the order passed on 23-3-1994. Original plaintiff thereafter moved the appellate court by presenting Regular Civil Appeal no. 151/1994 which came to be heard and disposed of by the Adhoc Additional District Judge, Shrirampur who was pleased to allow the same in view of judgment and decree dt. 23-3-2004. It is declared by the first appellate court that the plaintiff and defendant nos. 1 and 2 are entitled to have 1/3 rd share in the suit property. Trial court has also directed that the decree be sent to the Collector for partition and for putting the parties in possession of the share which can be ascertained by the concerned officials. Challenge is raised to the judgment and decree passed by the first appellate court on 23-3-2004 by presenting appeal on 6-10-2009. Thus, there appears delay of more than five years in presenting the appeal. 3 Appellant / applicant has contended in the application that he came to know about passing of the decree when he visited the office of Talathi in the month of September 2009. Thereafter he secured copies of the relevant orders and presented the appeal. It is his 3 specific contention that he was not served with the summons during the pendnecy of appeal or notice after transfer of appeal from District Court, Ahmednagar to the court of 1 st Adhoc Additional District Judge, Shrirampur. It is thus contended that the applicant had no knowledge regarding transfer of appeal from the court to Ahmednagar to the court of 1 st Adhoc Additional District Judge, Shrirampur. According to him, therefore, presentation of appeal after gaining knowledge in respect of its disposal shall have to be treated within limitation and, in these circumstances, delay occurred in presenting the appeal may be condoned. It is his further contention that one of the applicants expired in the year 1995 and after her demise there was no application presented by the appellants before the first appellate court for bringing her legal heirs on record. It is further contended by the applicant that he is residing at Jalgaon since 1994 and there were no attempts made to serve him at Jalgaon. In these circumstances, the applicant prays for condonation of delay. 4 Normally, this court takes a liberal view in the matters in respect 4 of condonation of delay. However, the relevant circumstance that is to be looked into is as to whether the litigant gains any advantage by protracting the litigation. In the instant matter, the decree in respect of partition and separation of shares is passed in the year 2004 and the applicant / appellant is admittedly in possession of the property and, therefore, in these circumstances, naturally the applicant / appellant is the beneficiary of the delay which has been caused by him in approaching the court. Apart from this, contentions put forth by the appellant / applicant as regards service of notice on him is required to be scrutinised. On going through the judgment of the trial court, it appears that original defendant no. 3 is father of defendant no. 4 who is applicant / appellant herein. Defendant no. 5 is wife of defendant no. 4. Defendant no. 3 / father of defendant no. 4 was party to the suit and contested the litigation. Basic contention is in respect of disposal of the property by defendant no. 1 in favour of defendant nos. 4 and 5. Reference is also there in the matter in respect of execution of an agreement to sell by defendant no. 1 in favour of defendant no. 3 and plaintiff and defendant nos. 2 being 5 the signatories to the said agreement to sell, defendant no. 3 has put forth his contention before the trial court and contested the litigation. Defendant nos. 4 and 5, however, preferred to remain ex-parte and did not file written statement. Suit was proceeded in their absence. Original defendants nos. 4 and 5 / respondent nos. 4 and 5 before the first appellate court are shown to have been served. 5 Now, contention raised by applicant that he is resident of Jalgaon and was not served with the notice is required to be scrutinised. it is to be noted that the agreement to sell initially was executed in favour of father of the applicant i.e. original defendant no. 3 who had contested the litigation. However, sale-deed was got executed in favour of applicant herein. While getting the sale-deed executed, address of defendant nos. 4 and 5 is shown at Ahmednagar. So far as contention in respect of service of notice is concerned, it transpires that initially notices were tried to be served on the address at Juni Ghas Galli, Ahmednagar. Report of the bailiff in respect of service of the notice is that father of defendant no. 4 was 6 found present and he informed that the addressee stays in Madhya Pradesh and, as such, the notice was returned back. This was on 6-12-1994. Thereafter when the notices were tried to be served on the address at Islampura, Jalgaon, the bailiff reported that the concerned respondent is not staying on the address given and, as such, the notice was returned back. The next attempt was made for serving the respondent on the address given at Ahmednagar. The same was also futile and the notices were returned back on 2-8-2002. Finding that the respondent could not be served by usual mode of service on the address given on record of the court, the notices were published in the newspaper having circulation in the region. Notices came to be published on 26-12-2003 in daily Lokmat calling upon the concerned respondent to remain present. Subsequent publication in respect of service of notice on the respondent while in the decree was put to execution. The same came to be published on 23-3-2004 in the local newspaper. Similarly, again notice was published in respect of execution in daily Lokmat on 26-10-2007. The last two publications are in respect of execution of the darkhast. Inspite of these efforts, it 7 transpires that the applicant / appellant did not cause his appearance either before the first appellate court or before the executing court. As stated earlier, the applicant is benefited on account of delay caused as he remains in possession of the property and the respondents who are held entitled to have share in the property are kept away from the fruits of the decree for more than five years. Another aspect that is relevant and is also required to be taken note of is that the father of the applicant herein was contesting respondent who had contested the litigation before the trial court and he presented his written statement and resisted the suit. It cannot be said that the interest of the respondent nos. 3, 4 and 5 / original defendant nos. 3, 4 and 5 is conflicting. Moreover, the case put up by the concerned defendants is complimentary to each other which would be evident from the fact that the property in dispute, at the initial stage, was tried to be sold by executing agreement to sell in favour of defendant no. 3 whereas thereafter sale-deed is got executed in favour of defendant nos. 4 and 5. In these circumstances, reasonable inference is required to be drawn that 8 defendant nos. 4 and 5 although were aware of the litigation, kept themselves away and did not contest the suit and further remained away from the proceedings of the appeal. 6 Learned counsel for the applicant has invited my attention to the judgment of the Apex Court in the matter of D. Saibaba Vs. Bar Council of India and Another reported in (2003)6 SCC 186 and contended that the delay occasioned in the matter is required to be computed from the date of gaining knowledge or from the date of receiving notice. However, considering the facts and circumstances in the matter and for the reasons stated above, I am of the opinion that reliance placed on the judgment of the Apex Court is misplaced and the same cannot be made applicable to the facts and circumstances of the present case. Application seeking condonation of delay of 1825 days, therefore, does not have any merit. Application therefore stands rejected. Consequently, the appeal also fails. ( R. M. BORDE, J.) dyb/office/ca7043.09.odt