Bombay High Court
Mohammad Moizul Hasan Abdul Aziz ... vs Seema Quazi Mohammad Ismail on 28 April, 2016
Bench: S.P. Deshmukh
1 WP/4809/2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4809 OF 2016
1. Mohammad Moizul Hasan S/o Abdul Aziz,
Aged about : 32 years, Occu: Service,
R/o. : Plot No: 19, Madina Beef Shop,
Silk Mills Colony, Aurangabad
2. Mohammad Shaker S/o Mohammad Hussain,
Aged about : 57 years, Occu : Driver,
R/o : Plot No.19, Madina Beef Shop,
Silk Mills Colony, Aurangabad
3. Khairunisa Begum w/o Mohammad Shaker,
Age about : 51 years, Occu : Housewife,
R/o: Plot No: 19, Madina Beef Shop,
Silk Mills Colony, Aurangabad
4. Sk. Badruddin S/o Sk. Chand,
Aged about :85 years, Occu: Nil,
R/o: M.H.No. 5-28-116/P, CTS No. 18787,
Silk Mills Colony, Aurangabad
5. Zubeda Begum w/o Sk. Badruddin,
Aged about : 75 years, Occu : Household,
R/o: M.H. No. 5-28-116/P, CTS No. 18787,
Silk Mills Colony, Aurangabad .. Petitioners
Vs.
Seema Quazi w/o Mohammad Ismail,
Aged about : 46 years, Occ : Household,
R/o : Silk Mills Colony, Aurangabad .. Respondent
----
Mr. V.I. Thole, Advocate for the petitioners
Mr. A.D. Kasliwal, Advocate for the respondent
----
CORAM : SUNIL P. DESHMUKH, J.
DATE : 28-04-2016
2 WP/4809/2016
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with
consent of the parties.
2. The petitioners, aggrieved by the order dated 19-4-2016
upon an application Exhibit 10 in regular civil appeal no. 32 of 2015
pending before the district judge-7, Aurangabad, whereunder their
request for extension of time to deposit the amount has been rejected,
are before this Court.
3.
Briefly stated the facts are that the suit had been instituted
for the possession by the respondent against the present petitioners.
The suit has been decreed and as such the present petitioners had
preferred aforesaid regular civil appeal which is pending. During the
pendency of the appeal, the petitioners had also preferred an
application praying for stay to the operation and effect of the impugned
decree in the appeal. The appellate court had passed an order on the
stay application as follows :
" ORDER
1. The application is partly allowed.
2. The execution of the judgment and the decree passed
in Spl. C.S. No.56/2013, on 18th December 2014 passed by
the 7th Jt. Civil Judge (Senior Division) Aurangabad is
hereby stayed subject to the condition that the appellants
to deposit the amount ordered by the Ld. Lower Court
within a period of four weeks from the date of order.
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3. The respondent shall be entitled to withdraw the
deposited amount without furnishing any security and in
the event the appellant fails to comply with the order, the
stay shall be vacated at once.
4. Costs to follow events. "
4. Aggrieved by the said order putting condition of making
payment, the petitioners had been before this Court in writ petition
bearing no. 7402 of 2015. The writ petition came to be dismissed by
this Court vide its order dated 23-11-2015. It was thereafter, the
petitioners had deposited the amount pursuant to the order passed by
the appellate Court on stay application albeit in installments and
application Exhibit 10 has been moved for continuation of the interim
relief by granting extension of time. It is this application, which has
been rejected by the appellate court. Reasons which have weighed for
rejection of the application have been summarized by the court in its
order, in paragraphs no.4 and 5, which read thus :
"4. Heard learned Advocates for parties. No doubt,
that the Court should be liberal for the purpose of
extension of time and Courts are not helpless in
applications of the kind under consideration. U/sec
151 of the Civil Procedure Code, the Court has a
power to enlarge the time originally fixed and to
grant further indulgence to the parties in default, if
really the case merited such indulgence. In the
instant matter the appellants were directed to
deposit the amount as ordered by the Lower Court
within 4 weeks. The appellant challenged the said
Order by Writ Petition which was finally disposed off
in the month of November, 2015. Despite, he
moved an application on 23.3.2016 for extension of
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time. No reason is stated for delay. The Court has
to also see the rights of the other side also.
5. Now, if we see the Order passed by this Court
on 25.6.2015, there is a condition attached with the
Order that in case the amount is not deposited
within the period of 4 weeks, the said Order would
become inoperative. It is the conditional Order
which has not been complied with by the appellants.
The conditional Order has worked itself out, and so
the application filed by the appellants u/sec 148 of
C.P.C. beyond the period fixed can not be
entertained. Where such Order is passed and the
condition is not fulfilled within the time specified
therein, the application automatically gets
dismissed.
In view of the aforesaid
ig reasons the
application stands dismissed."
5. Learned counsel for the petitioner Mr. V.I. Thole submits
that looking at the events as have occurred, in which the petitioners
had been legitimately prosecuting the remedies having been aggrieved
by the orders passed by the appellate court while granting stay and
after its culmination into the order of the High Court, they have duly
substantially complied with the conditions, as had been imposed while
granting stay. In the course, since they were aggrieved and hard
pressed, they could not comply with the order earlier and had tried to
challenge the same by approaching the High Court. While challenge
was found to be not sustainable by the High Court, thereafter, the
conditions were complied with. However, they are now considered to
be not in adherence to the conditions imposed.
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6. The learned counsel further submits that petitioner nos.4
and 5 are old aged persons, who are parents-in-law of the respondent
residing in the suit property. It is them, who would be directly affected
if the decree is allowed to be executed. It was not within their means
and control to comply with the order immediately within the stipulated
period. Persons who were capable to comply with the order are not
likely to be affected due to execution of the decree immediately. He
submits that the appeal is continuation of the suit and it cannot be said
that by the decree, adjudication of the rights of the parties to the suit
property has finally taken place and the adjudication of rights of the
parties is still wide open, as it were in the suit.
7. The learned counsel submits that even if it is assumed that
the order of the appellate court has merged into the order of this
Court, this Court can consider the request for extension of time for
complying with the order and the writ petition be given treatment
accordingly.
8. Mr. A.D. Kasliwal, learned counsel appearing for the
respondent/plaintiff with vehemence and exuberance has opposed the
request now being made in the writ petition. He submits that the
order on stay application having got merged into the order of this
Court in the earlier round of litigation, it would not be open for the
Court to consider the request since a bar analogous to the doctrine of
res judicata, as has been held by the Supreme Court time and again
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would be applicable. He further submits that no indulgence be given
to the request being made because petitioners nos.1 to 3 are able
bodied persons and have all the means and capacity to comply with
the order immediately and yet have waited till passing of order by this
Court in the earlier writ petition.
9. The conspectus overall leads to the situation, wherein it is
the petitioners nos.4 and 5 who would be hit the most by execution of
decree and the rest of the petitioners would not be affected as much as
the petitioners nos.4 and 5.
10. Aforesaid aspect goads me to consider the request made
by the petitioners. The matter at the instance of the petitioner is in this
Court aggrieved by refusal to extend time under section 148 of the
Code of Civil Procedure. Since it is being contended that there is
merger of the conditional order passed earlier by the appellate Court
into the order of this Court in earlier writ petition, it would not be such
a case in present matter and it would not be that the petitioners have
been prohibited from seeking the opportunity and request this court for
extension of time. The requisite compliance under due obedience
appears to have been made. In the circumstances, the discretion of
this Court is required to be flexed to suit the situation. The writ petition
as such is being considered for extension of time for compliance of
condition for interim relief, which would be in operation during the
pendency of the appeal. As such the impugned order is set aside.
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Period as granted for compliance of the order passed on stay
application by the appellate Court shall be deemed to have been
extended to the date of compliance as it stated to have been made.
11. The writ petition is allowed, setting aside the order
impugned order and rule is made absolute in terms of prayer clause
(2) of the writ petition. It is however further made clear that as the
appeal is pending since 2011, and while it has been stated that it is
pending for preparation of the paperbook, the preparation of
paperbook be expedited and be prepared within six weeks from the
date of receipt of writ of this order and upon the same, appeal to
proceed with expeditiously preferably within a period of eight weeks
thereafter and be disposed of.
[SUNIL P. DESHMUKH]
JUDGE
arp/
