Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.
There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.
The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad, 2018 SCC OnLine Bom 2892, dated 03-10-2018]
