Smt. Ushabai Wd/O Vishwasrao ... vs Smt. Aruna W/O Subhashrao ...
2016 Latest Caselaw 3003 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                      
                           NAGPUR BENCH, NAGPUR
                                               WRIT PETITION No.655 OF 2015




                                                                                                     
    1. Smt. Ushabai wd/o Vishwasrao Meghe,
       aged about 73 years, Occ. House-hold, 
       R/o Nagpur, Tah. & Dist. Nagpur. 




                                                                               
    2. Smt. Sangita w/o Ravindra Bhoyar,
       aged about 39 years, Occ. Household, 
       R/o Gajanan Nagar, Wardha Road, 
       Nagpur, Tahsil and Dist. Nagpur. 
                                                  ig                                         ...                                 Petitioners. 
                                                
                                                ..Versus..

    1. Smt. Aruna w/o Subhashrao Deshmukh,
       Aged about 59 years, Occ. Household, 
       R/o Amravati, Tah. & Dist. Amravati. 
        


    2. Shri Harish s/o Jaduram Vyas,
     



       Aged aout 49 years, Occu. Business, 
       R/o Wardha, Tah. & Dist. Wardha. 

    3. Shri Rajendrakumar s/o Shankar Singh Thakur,





       Aged about 49 years, Occu. Business, 
       R/o Wardha, Tah. & Dist. Wardha.      ...                                                                             Respondents.
    .......................................................................................................................................................

Mr. S.W. Sambre, advocate for petitioner.

Mr. D. Pathak, advocate for the respondent nos. 2 & 3.

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                                                            CORAM                 :  A.S. CHANDURKAR, 
                                                                                                         J.
                                                            DATED                 :  20 th
                                                                                            JUNE,
                                                                                                  2016.

    ORAL JUDGMENT.

In view of notice for final disposal, the learned counsel for the

parties have been heard at length.

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2. The petitioners who are the original plaintiffs in Special Civil

Suit No. 101/1996 have filed the present writ petition challenging the order

dated 27.10.2014 passed in M.J.C. No. 34/2010. M.J.C. No. 34/2010 was

filed for restoring M.J.C. No. 61/2007 which in turn was filed for restoring

the suit which was dismissed in default on 29.9.2007.

3. After dismissal of the aforesaid Special Civil Suit on 29.9.2007,

the petitioners have filed M.J.C. No. 61/2007. On 3.4.2010, as there was

none present on behalf of the petitioners herein, the proceedings were

dismissed in default. The present proceedings for restoration and for

condonation of delay came to be filed praying that the delay of about 6

months and 10 days be condoned. This delay has not been condoned by the

trial court.

4. Shri Sambre, the learned counsel for the petitioners, submitted

that the proceedings in question were being handled by the Power of

Attorney holder of the petitioners. However, due to fraud played by the said

Power of Attorney Holder, the petitioners were not aware of the progress of

said proceedings. He submitted that thereafter another counsel was engaged

for obtaining certified copies and on receiving the same, the present

proceedings came to be filed. He further submitted that the petitioners had

led evidence in support of the application for condonation of delay. He,

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therefore, submitted that the delay in question deserves to be condoned

with opportunity to the petitioners to contest the proceedings on merits.

5. Shri Pathak, the learned counsel for the respondent nos. 2 & 3

supported the impugned order. He submitted that there was no sufficient

cause furnished by the petitioners to have the delay condoned. According to

him, the present proceedings were not maintainable in view of the provisions

of Order IX Rule 4 of the Code of Civil Procedure. He submitted that though

the certified copies of the orders passed in M.J.C. No. 61/2007 were received

by the petitioners at an earlier point of time, they have come up with false

story that the certified copies were received subsequently. He, therefore,

submitted that the trial court was justified in rejecting the application for

condonation of delay.

6. The facts on record indicate that the civil suit filed by the

petitioners for declaration and possession of the suit property came to be

dismissed in default on 29.9.2007. For restoring the suit, M.J.C. No.

61/2007 came to be filed on 23.10.2007. These proceedings came to be

dismissed on 3.4.2010 and the present proceedings were filed on

12.10.2010. According to the petitioners, the Power of Attorney holder who

was looking after the proceedings had kept the petitioners in dark and

therefore they were not in a position to apply for restoration of the earlier

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proceedings in time. The certified copy was received on 17.7.2010. Said fact

was not informed to the petitioners. Another application for receiving

certified copy was made on 5.9.2010 and the same was received on

7.9.2010. It is stated that the petitioners on that basis sought the delay to be

condoned. The trial court after considering the evidence on record found that

the certified copy was delivered to the plaintiffs on 16.6.2010 but only a

photo copy was filed on record. It was further observed that another copy

was received by their counsel on 17.7.2010 but the same was not filed on

record. Yet another certified copy of the order is stated to be received on

7.9.2010 but the same has also not been filed on record. Hence, a finding

has been recorded by the trial Court that no certified copy of the order

relating to dismissal of the proceedings was filed on record. It was then

observed that no notice was given to the Power of Attorney holder by the

petitioners for cancelling his authority. It is on this basis that the trial court

observed that the petitioners have failed to file necessary documents

regarding the dismissal of the proceedings and had also failed to explain the

delay.

7. From the aforesaid material on record it can be seen that

photocopy of the certified copy delivered on 16.6.2010 was not filed on

record. Other certified copies subsequently received on 17.7.2010 and

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7.9.2010 have not been filed on record. From the certified copy received on

16.6.2010 there is a delay of about four months in filing the proceedings for

restoration. According to the witness examined by the petitioners,

knowledge about the dismissal of the proceedings was obtained on 13.8.2010

in proceedings before the Director of Land Records. Even after said date the

present proceedings have been filed after two months on 12.10.2010. In this

background, therefore, the finding recorded by the trial court that there was

no sufficient explanation for the delay as caused appears to be based on the

documents on record. The trial court has also considered the deposition of

witness and has then observed that no supporting material was placed on

record. In this background, I do not find that the trial court committed any

error in rejecting the application for condonation of delay.

There being no jurisdictional error, the writ petition is

dismissed. No costs.

JUDGE

Hirekhan

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