Bombay High Court

JAYMALA NAVALKISHOR DIDIversusBALWANT SHRIRANG DEVKAR

Disposal: Dismissed

Holding

The petition is dismissed; the delay is inordinate and cannot be condoned, and the decree is not treated as ex parte.

Summary

The petitioner challenged a trial court order refusing to condone a delay of over three years in filing an application to set aside an ex parte decree in a suit for specific performance of a land sale contract. She claimed the delay was due to her husband’s terminal illness, her own health issues, and reliance on a negligent lawyer, also invoking the COVID‑19 lockdown as a factor. The respondent contended that the decree was not ex parte, the petitioner had appeared through counsel, and that any lapses were her own responsibility, not the lawyer’s. The court examined the doctrine of limitation, noting that delay must be reasonable and that a litigant cannot shift blame entirely to counsel. Citing Supreme Court precedents, the court held that the petitioner’s explanations did not justify the inordinate delay and that the decree could not be treated as ex parte. Consequently, the petition was dismissed as without merit.

Issues considered

Whether the trial court should condone a delay of 3 years 2 months and 59 days for filing an application to set aside an ex parte decree.
Whether the decree in the underlying suit is deemed ex parte despite the petitioner’s participation through counsel.
Whether the petitioner’s personal hardships and the COVID‑19 lockdown constitute sufficient cause for condonation of delay.
Whether negligence of the petitioner’s lawyer can be a ground for condoning inordinate delay.

Legislation cited

Limitation Act, 1963

Subjects

condonation of delay
ex parte decree
limitation law
lawyer negligence
specific performance
contract sale
civil procedure

Judgment

WP 4069 26.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4069 OF 2026

Jaymala Navalkishor Didi … Petitioner
Vs.
Balvant Shrirang Devkar … Respondent
………….
Adv. Manmath Athalye for the Petitioner (through V.C.)
Adv. Nikhil Wadikar (through V.C.) a/w Mr. Dhananjay A. Utture
………….
CORAM : SHAILESH P. BRAHME, J.

RESERVED ON : 27th AUGUST, 2026.
PRONOUNCED ON : 31st AUGUST, 2026.

FINAL ORDER :-

Heard both sides.

2. The petitioner is questioning judgment and order dated 29.04.2026

passed in Civil Misc. Application No. 33/2023, refusing to condone delay of

3 years 2 months and 59 days for filing application to set aside ex parte

decree.

3. The respondent had filed Spl. Civil Suit No. 92/2014 for specific

performance of contract seeking enforcement of agreement to sell executed

by the petitioner in favour of the respondent on 06.06.2011 offering to sell

land Gat No. 28/2 for Rs. 15,50,000/-. The respondent is stated to have

paid Rs. 7,00,000/- as an earnest amount and ready to pay the balance

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amount. The petitioner appeared in the suit. The written statement was not

filed in time. The order of ‘no written statement’ was passed. It was set

aside by imposing costs of Rs. 500/-. The cost was also not paid. The matter

was proceeded without written statement. The suit was decreed on

02.11.2018.

4. The petitioner filed Civil Misc. Application No. 33/2023 seeking

condonation of delay of 3 years 2 months and 59 days for filing application

for setting aside ex parte decree. On 29.03.2022 respondent filed reply to it.

The Trial Court refused to condone the delay by speaking order passed on

29.04.2026, which is assailed in the present petition.

5. Learned counsel for the petitioner submits that the delay is not

intentional. Her husband was suffering from cancer, who was looking after

the litigation. He died on 08.01.2019. Her son was abroad and there was

nobody to look after the petitioner and the litigation. She was also ailing.

She is stated to have acquired knowledge in November 2018. It is submitted

that the circumstances are beyond her control. The Trial Court should have

condoned the delay. It is contended that the lawyer engaged by her did not

inform the progress of the suit and she heavily relied upon him, who

misrepresented her. It is submitted that from 15.03.2020 there was

lockdown due to Covid-2019. The Trial Court is stated to have adopted

hyper technical approach in rejecting the application by impugned order.

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6. Per contra, learned counsel for the respondent would submit that the

decree passed by the Trial Court was not ex parte. The petitioner had

appeared by engaging lawyer, got set aside ex parte order and participated

in the proceedings. It is submitted that there are lapses on the part of the

petitioner and her lawyer cannot be blamed. It is submitted that an attorney

was also engaged by her. The admissions given by her in the cross-

examination before the Trial Court are shown to me. It is submitted that the

petitioner is well off and no interference is necessary in the present matter.

7. The petitioner appeared in the suit by engaging a lawyer.

Adjournments were sought for filing written statement. Despite opportunity,

no written statement was filed. Order of ‘no written statement’ was passed.

The petitioner preferred application Exh. 19 to set aside order of ‘no written

statement’. It was allowed in December 2017 by imposing costs of Rs.

500/-. The order was not complied with and the matter proceeded without

reinstatement. The oral evidence of the respondent was considered and the

suit was partly decreed on 02.11.2008. Under such circumstances, I have

reservation for treating the decree as ex parte.

8. The suit land was agreed to be sold for Rs. 15,50,000/-. The

respondent paid earnest amount of Rs. 7,00,000/- and showed readiness to

pay balance amount. It is mentioned in the application for condonation of

delay by the petitioner that her son is in service abroad and she has a

daughter also who is occupied in business. She had appointed attorney. I do

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not find that the financial condition of the petitioner is penurious, and she

was not in a position to keep track with the progress of the suit.

9. The petitioner had engaged a lawyer. Neither she filed written

statement nor paid cost which was imposed while setting aside order of no

written statement. The cross-examination of her witness elucidates that

petitioner and her deceased husband were using mobile. They could have

contacted the lawyer for appraising the status of the matter. It was not her

case that the amount of Rs.500/- was deposited with the lawyer and the

lawyer instead of depositing in court misused it. The cross-examination

shows lapses on the part of the petitioner. In her application, the lawyer

engaged by her is being blamed. No action is taken against the lawyer. It is

equal duty of the client to remain in touch with the lawyer and to take

efforts to know the stage of the proceedings. The reasons assigned in the

applications are not convincing.

10. It further reveals from the application that petitioner learned about

the decree passed in the civil suit in month of November - 2021 when she

received notice in execution proceeding. She is stated to have applied for

certified copies which are received in February. Surprisingly, undue time is

wasted from November to February - 2021. Thereafter, application is filed on

29.03.2022. Petitioner is an educated lady. Her son is in service. Her

daughter and the attorney were there to help her. Under such circumstances,

I find that delay of 3 years 2 months and 59 days is inordinate and remained

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unexplained.

11. The lockdown for COVID-19 started from 15.03.2020 and continued

up to 28.02.2022. She filed application C.M.A. No. 33 of 2023 after one year

thereafter. The approach of the petitioner appears to be very casual.

12. The respondent has parted with substantial amount and it is

legitimate expectation that litigation would end at some point of time. The

suit was filed on 28.04.2014. It would cause grave prejudice to the

respondent to relegate the parties to the stage of filing of written statement

in the trial court. I do not find any illegality in the impugned order. A

plausible view has been taken which needs to be confirmed.

13. Reliance is placed by the respondent on the judgment of Hon’ble

Supreme Court in the case of Pundlik Jalam Patil (D) by Lrs. Versus Exe,

Eng. Jalgaon Medium Project & Anr.1 The following is the relevant

paragraph:

“22. Basically the laws of Limitation are founded on public
policy. In Halsbury's Laws of England, 4ª Ed., Vol.28,p.266,para
605, the policy of the Limitation Acts is laid down as follows:

"The courts have expressed at least three different reasons
supporting the existence of statutes of limitation, namely, (i) that
long dormant claims have more of cruelty than justice in them,
(ii) that a defendant might have lost the evidence to dispute the
stated claim, (iii) that persons with good causes of actions
should pursue them with reasonable diligence."

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14. A useful reference can be made to the judgment of Hon’ble Supreme

Court in the case of Rajneesh Kumar and another Versus Ved Prakash.2 .

Following is the relevant paragraph which is reproduced herinbelow :

"10. It appears that the entire blame has been thrown on the
head of the advocate who was appearing for the petitioners in
the trial court. We have noticed over a period of time a tendency
on the part of the litigants to blame their lawyers of negligence
and carelessness in attending the proceedings before the court.
Even if we assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground to
condone long and inordinate delay as the litigant owes a duty to
be vigilant of his own rights and is expected to be equally
vigilant about the judicial proceedings pending in the court
initiated at his instance. The litigant, therefore, should not be
permitted to throw the entire blame on the head of the advocate
and thereby disown him at any time and seek relief."

The observations of the Hon’ble Supreme Court are applicable to the

present case.

15. I find that the petition sans merit. Hence, it is dismissed.

( SHAILESH P. BRAHME, J.)

2 SLP (Civil) No. 935-936 of 2021 dated 21 November 2024.

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