Bombay High Court

BALAWANT AKOBA SONAWANE THR LRS AND ORSversusKIRAN DILIP MANE AND ANR

Disposal: Rejected

Holding

The Court held that the petitioners' delay was not justified and they were not entitled to relief, thereby dismissing the writ petition.

Summary

The petitioners, heirs of the deceased original defendant, sought condonation of a 3‑year‑6‑month delay in filing an application to set aside the abatement of their civil appeal concerning a possession suit. The appellate court had earlier rejected the condonation, holding that the petitioners were aware of the proceedings and had failed to appear or file pleadings. The petitioners argued that they were unaware of the adverse orders and faced hardship, while the respondents contended that the delay was deliberate and the petitioners were trespassers. The High Court examined the oral evidence, noting admissions that the heirs had knowledge of the case and that no medical proof of incapacity was presented. Concluding that the petitioners were not entitled to equity and that the delay was not justified, the Court dismissed the writ petition.

Issues considered

Whether the appellate court should condone a delay of over three years in filing an application to set aside the abatement of an appeal.
Whether the petitioners, as heirs, were unaware of the adverse order and thus entitled to relief.
Whether the petitioners' continued possession without rent renders them trespassers disqualified from equitable relief.
Whether the lower court's refusal to condone the delay should be upheld.

Subjects

condonation of delay
abatement of appeal
possession suit
trespass
civil procedure
writ petition
heir
legal representation

Judgment

                                                                 66-WP-687-2026.doc



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

                        WRIT PETITION NO. 687 OF 2026

Balawant Akoba Sonawane                                      … Petitioners
Through LRs. & Ors.
             Vs.
Kiran Dilip Mane & Anr.                                      … Respondents
                               ………….
Mr. Vaibhav Gaikwad a/w Samrat Hajare for the Petitioners.
Mr. Prajakt M. Arjunwadkar (through VC) a/w Mr. Dhananjay A. Utture,
Ritesh Raut, A.M. Mane for Respondent Nos. 1 and 2.
                               ………….
                                      CORAM : SHAILESH P. BRAHME, J.

                                      DATE       : 16th SEPTEMBER, 2026.
P. C. :

.         Heard both sides finally.

2.        The petition is directed against the order dated 30.03.2022 passed

in Civil Miscellaneous Application No. 55 of 2021, rejecting the

application for condonation of delay of 3 years 6 months and 15 days in

setting aside abatement of the appeal.

3.        The petitioners are the original defendants who suffered decree on

26.03.2015 in R.C.S. No. 195 of 2013 instituted by the respondents for

possession.        Being aggrieved, Regular Civil Appeal No. 119 of 2015 was

preferred by him. It was declared to be abated as no steps were taken to

bring heirs of deceased appellant – petitioner on record in time.

ZIP                                     1 of 5
                                                           66-WP-687-2026.doc



Application for setting aside order of abatement passed on 11.09.2017

was preferred along with application for condonation of delay.          The

Appellate Court refused to condone the delay by the impugned order.

4.    Learned counsel for the petitioners submits that the substantive

right of the petitioners is at stake in R.C.A. No. 119 of 2015.         The

Appellate Court adopted hyper technical approach in refusing to condone

the delay. It is submitted that one opportunity needs to be given to the

petitioners. The cogent reasons given in the application for condonation

of delay are not properly appreciated.    It is submitted that petitioners

and the legal heirs were not aware of the order passed on 11.09.2017

and they be given one opportunity to contest the matter on merits by

quashing the impugned order.

5.    Per contra, learned counsel for the respondents would submit that

petitioner – Balawant did not contest the suit. He and his heirs are

trespassers.   They are well aware of the progress and the status of the

regular civil appeal. My attention is adverted to the vital admissions

given by their witness in the cross-examination.     It is submitted that

respondents suffered great hardship as the premises in question was

required. It is submitted that the delay is deliberate and actuated by

mala fides.




ZIP                              2 of 5
                                                            66-WP-687-2026.doc



6.    I have considered rival submissions of the parties. The respondents

had filed R.C.S. No. 195 of 2013 for possession of the house property

from the petitioner – deceased Balawant. It was contended that he was

in arrears of rent since November - 2012, which was Rs.2,500/- per

month.    The petitioner had appeared in the trial Court by engaging a

lawyer on 23.07.2013, who did not file written statement. The suit was

ordered to proceed ex parte.    The petitioner failed to file pleadings and

adduce evidence before the trial Court.       After considering the oral

evidence, it was categorically observed that the suit premises was

required by the plaintiff as they were of marriageable age and had no

accommodation      and the suit was decreed on 26.03.2015. Being

aggrieved R.C.A. No.119 of 2015 was filed which was abated on

11.09.2017.

7.    The petitioners submitted application for condonation of delay on

25.03.2021. The delay of 3 years, 6 months and 15 days was sought to be

condoned mainly on the ground that petitioner late Balwant was looking

after the proceeding and he died on 23.09.2015. His heirs were not

aware of the adverse orders passed in the matter. The hardship suffered

by the heirs and their inability was pressed into service. They are alleged

to have received the knowledge in the execution. Application is contested

by the respondent. Petitioner adduced oral evidence of two witnesses.


ZIP                               3 of 5
                                                            66-WP-687-2026.doc



Petitioner No. 8 Umesh Sonawane was cross-examined.

8.    I have gone through the cross-examination. It is admitted by the

witness that his sister Shubhangi used to accompany deceased father. It is

further admitted that sister used to accompany father for the work of

appeal. He could not produce any material to show illness and

hospitalization of his father. I find that the admissions given by the

witness are vital. It cannot be countenanced that petitioners, who are the

heirs of original defendant, were unaware of the proceedings of the Trial

Court as well as Appellate Court. The oral evidence has been rightly

appreciated by the Court below. The lapses are apparent on the part of

the petitioner. In impugned order, Appellate Court has rightly dealt with

the material and arrived at reasonable conclusion. The entire blame

cannot be put on the lawyer who is representing the party. Clients also

owe duty to be in touch with the lawyer.

9.    There is no dispute that respondents are the owners of the suit

premises. The original defendant and after his demise the petitioners are

occupying it without paying any rent. They are the trespassers. The Trial

Court appreciated hardship caused to the respondents for not getting

possession of the suit premises. The same is perpetuated till this date.

Petitioners are enjoying the possession illegally. The lapses on their part




ZIP                               4 of 5
                                                              66-WP-687-2026.doc



are with oblique motive to deprive the lawful owners from the fruits of

the decree. Petitioners are not entitled to any equity. I am of the

considered view that they are dishonest. No case is made out to condone

the delay. The view taken by the Trial Court needs to be upheld.

Accordingly, the Writ Petition is dismissed.




                                                ( SHAILESH P. BRAHME, J. )



10.   After pronouncement of the order, learned counsel for the

petitioner seeks continuation of the protection for six (06) weeks.

11.   Learned counsel for the respondents opposes the request.

12.   As the protection is in operation, the same shall be extended for a

period of four (04) weeks, which shall stand vacated automatically

without further reference to the Court thereafter.



                                               ( SHAILESH P. BRAHME, J. )




ZIP                                5 of 5

Continue reading with your account

Checking your session…