Anil L. Pansare DECISION
Anil L. Pansare, J.
1. Heard the learned counsel for the respective parties, at length.
2. The appellant/original defendant has challenged the order dated 05.04.2018 passed by learned District Judge-13, Nagpur in Miscellaneous Civil Application No. 52/2014.
3. It appears that the appellant had filed an application under section 5 of the Limitation Act for condonation of delay of 1014 days in filing Appeal against the judgment and decree dated 25.01.2011 passed by the learned Joint Civil Judge, Sr.Dn., Nagpur in Special Civil Suit No. 774/2007. The first appellate Court has rejected the application.
4. The notice had been issued on the following substantial question of law :-
"Whether the appellate Court is justified in refusing to condone delay of 1014 days in filing the appeal."
5. Mr.U.V. Waghmare, the learned counsel for the appellant contends that the evidence led before the first appellate Court in support of justification for the delay, has not been properly appreciated. Au contraire, Mr.A.B.Raje, the learned counsel for the respondent has supported the order passed by the first Appellate Court.
6. I have gone through the impugned order. The following were the reasons put forth by the appellant to justify the delay :-
(i) He has not received any suit summons;
(ii) He had not engaged any Advocate in the suit;
(iii) He got the knowledge of judgment and decree in the month of September 2013 when he received notice from Patwari;
(iv) Immediately thereafter, on 06.09.2013, he applied for certified copy of the sale deed, which is received on 09.10.2017;
(v) Thereafter, he engaged Advocate and applied for certified copy of all the documents filed in Special Civil Suit which were received on 20.11.2013;
(vi) After receipt of the said documents, he got knowledge that suit summons was received by his nephew who never intimated him;
(vii) It is also revealed that the plaintiff/non-applicant fraudulently obtained decree on the basis of forged agreement to sell.
(viii) The plaintiff/non-applicant might have engaged other Advocate by making forged signature of the applicant on vakalatnama.
7. The appellant had led evidence in support of his application. In the chief-examination, he reiterated the aforesaid grounds but in the cross-examination he has been exposed completely.
8. So far as the first ground is concerned, the first appellate Court has noted that the suit summons (Exh.9) was received by one Vivek Dhone, who admittedly is a nephew of the appellant. The first appellate Court has also noted that the appellant had, in fact, engaged two Advocates namely, Yogesh Shukla and M.Y. Shukla, vide vakalatnama (Exh.11). The appellant made a bold allegation that he had not engaged these two Advocates. He went on to add that the respondent/non-applicant might have engaged these Advocates by putting his forged signature on the vakalatnama.
9. In the cross-examination, it is elicited that his nephew-Vivek Dhone, who accepted the summons told him (the appellant) of receiving summons but after 7/8 days of the date fixed by the Courts. On the engagement of Advocate, the appellant admitted that he had engaged the said two Advocates and instructed them to conduct the case. He has also admitted his signature on vakalatnama. The first appellate Court has, therefore, held, and rightly so, that these admissions would clearly establish that the appellant was well aware of service of summons.
10. The first appellate Court has then noted that the appellant had filed his registered address (Exh.10) with his signature and filed an application seeking time to file written statement. He has also filed an application for issuance of directions to supply documents. His Advocate has received documents on 30.10.2007.