[1] This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 09.11.2011 passed in Misc. Civil (Delay) Application No.30/2010 whereby the learned Principal District Judge, Navsari has dismissed the application for condonation of delay in preferring Regular Civil Appeal against the judgment and decree dated 27.02.2007 passed by the 4th Additional Senior Civil Judge, Navsari in Regular Civil Suit No.110/2005 (Special Civil Suit No.104/1999 old).
[2] The learned Judge has recorded in the order that the petitioner had knowledge about the judgment and decree in the year 2007 itself and the ground of having come to know about the judgment and decree only when the execution application was filed, was not believed because the lawyer who represented the petitioner in the suit was the same lawyer who was again engaged by the petitioner, even in execution application. Even apart from this, the petitioner himself has stated in his application for condonation of delay in paragraph No.4 that the applicant came to know about the judgment and decree passed by the learned trial Judge, when the notice was served on the applicant in Execution Petition No.27/2007 and when he signed the vakalatnama of the advocate to represent himself in execution application. The vakalatnama, in fact, came to be filed in the year 2007 itself.
[3] It is pertinent to note that in Regular Civil Suit No.110/2005, the petitioner never adduced any evidence though the learned trial Judge gave ample opportunity to the petitioner. Thereafter, the learned Judge passed the judgment and decree on the basis of the evidence adduced by the respondents - original plaintiffs and ordered to remove encroachment made by the petitioner from the land in question. The learned Judge has further recorded in the impugned order that the judgment and decree passed against the petitioner has already been executed and bailiff has already removed encroachment from the land in question and after removal of the encroachment, the petitioner preferred application for condonation of delay. Thus, the decree has already been executed and implemented and the petitioner then preferred application for condonation of delay to file appeal against the judgment and decree passed against him.
[4] It is again pertinent to note here that the judgment and decree is passed against the three other persons, over-and-above the petitioner. They have not filed any appeal. However, the petitioner is the only person who is the original defendant No.3, who had preferred application for condonation of delay to file appeal against the judgment and decree passed by the learned trial Judge. Therefore, it appears that the petitioner was never vigilant about his right and he had in fact lost his interest in the proceedings. Learned Judge found that the petitioner did not make out any ground or establish any sufficient cause for condonation of delay. Therefore, no error could be found in the order passed by the learned Judge in not exercising the discretion for condonation of delay.
[5] Learned advocate for the petitioner has submitted that even if the encroachment is removed pursuant to the decree passed by the learned trial Judge, the petitioner can still urge before the Appellate Judge that if the petitioner is permitted to prosecute the appeal on merits, as far as the title of the property is concerned, he has good title over the property and he will make out his case by producing the evidence before the learned Appellate Judge by requesting the Appellate Judge to allow the petitioner to produce on record the documentary evidence by exercising powers under Order XLI, Rule 27 of the Code of Civil Procedure. In fact as observed by the learned trial Judge, that the petitioner had ample opportunity to adduce the evidence before the learned trial Judge to establish the title over the property, but for the reasons best known to the petitioner, the petitioner did not avail that opportunity. Be that as it may, now it is too late for the petitioner to advance such contention at the stage when the decree is already executed and when the delay of more than 3 years has occurred. I therefore, do not find any substance in the petition and I find no reason to interfere with the order passed by the learned Judge. Accordingly, I do not accept the petition and it is required to be rejected. Accordingly, it is rejected.
[ C. L. SONI, J. ] vijay Top