SHRI.PURSHOTTAM SUHARAN YADAVversusBANSRAJ AMBIKA PRASAD YADAV and ORS.

2026:BHC-AS:38161

                                                              3-WP-2261-2003.docx


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION
                            WRIT PETITION NO. 2261 OF 2003
   Swapnil
               Purshottam Suharan Yadav.                      …Petitioner
                    Vs.
               Bansraj Ambika Prasad Yadav and Ors.           …Respondents
                                              WITH
                            CIVIL APPLICATION NO. 39 OF 2010


               Ms. A. R. S. Baxi for the petitioner.

                                       CORAM : GAURI GODSE, J.

                                       DATE :       18th SEPTEMBER 2026

               ORDER :


               1.    This writ petition is filed by original defendant no.3 to

               challenge the order passed by the appeal bench of the Small

               Causes Court dismissing his application for condonation of

               delay in filing the appeal.


               2.    The appeal was preferred to challenge the judgment

               and decree passed by the trial court. The trial court’s decree

               is dated 24th July 2000. The appeal was preferred sometime

               in April 2002 along with an application for condonation of

               delay. This application for condonation of delay was

               dismissed.


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3.   Learned counsel for the petitioner submits that after the

summons was served in the suit, defendant no.3 had

remained present in the court. However, he had not filed any

written statement. She submits that defendant no.3 was

never intimated about the ex parte decree. It was only after

he received the notice in the execution proceedings, he

learnt about the decree and therefore, filed the appeal. She,

thus, submits that the impugned order would require

interference, as defendant no.3 was unaware about the ex

parte decree and immediate steps were taken after

knowledge of the decree.


4.   I have perused the papers of the writ petition. In

paragraph 7 of the trial court’s judgment, it is recorded that

defendant no.3 was personally served. However he has

never appeared or filed any written statement. Hence, the

suit was proceeded ex parte against defendant no.3. From

the judgment it is clear that though served, defendant no.3

had never appeared in the trial court and the suit has

proceeded ex parte. It appears that defendant no.3 had

made not attempts to defend the suit. Since defendant no.3

was absent though served, the ground that ex parte decree



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was never intimated to him cannot be accepted as a valid

justification and condonable explanation to allow his

application for condonation of delay in filing the appeal.


5.    The appeal bench has considered the supporting

affidavit filed on behalf of defendant no.3. It is recorded that

the application for certified copies was filed after two years

and the appeal was lodged on 16 th April 2002. It appears that

the application filed for setting aside the ex parte decree was

also dismissed. Considering no valid reason for not

appearing in the suit though served and never challenging

the order directing the suit to proceed ex parte, the appeal

bench has rightly refused to exercise the discretionary

powers for condonation of delay.


6.    In the absence of any valid reason, the application for

condonation of delay cannot be entertained only on the

ground that he was not intimated about the ex parte decree.


7.    I see no illegality or perversity in the impugned order

warranting any interference in the discretionary jurisdiction

under Article 227 of the Constitution of India.


8.    The writ petition is dismissed.


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9.    In view of dismissal of the writ petition, pending civil

application is disposed of as infructuous.




                                             [GAURI GODSE, J.]




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