Bombay High Court
Shankarrao Ramchandra Bangar ... vs Gulum Kadir Taki M. Ansari (Since ... on 8 March, 2016
Bench: M.S. Sonak
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THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 521 OF 2016
IN
WRIT PETITION NO. 5527 OF 2005
Shankarrao Ramchandra Bangar
since deceased through Lrs.
K. S. Bangar & Ors. .. Applicants
vs.
Gulam Kadir Taki M. Ansari
(since deceased through Lrs.
Kaniz Fatima Gulam Kadirig
Ansari @ Mangal A. Shishode & Ors. .. Respondents
AND
CIVIL APPLICATION NO. 475 OF 2014
IN
WRIT PETITION NO. 5527 OF 2005
Shankarrao Ramchandra Bangar
since deceased through Lrs.
K. S. Bangar & Ors. .. Applicants
vs.
Gulam Kadir Taki M. Ansari ( abated against)
& Ors. Resp.No.1) .. Respondents
Mr. Uday P. Warunjikar for Applicants.
Mr. Dinesh Chamboowala for Respondent Nos. 1 and 2.
Mr. S. D. Rayrikar - AGP for Respondent No. 3.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 02 March 2016
Date of Pronouncing the Judgment : 08 March 2016
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JUDGMENT :-
1] Heard Mr. Uday Warunjikar for the Applicants, Mr. Dinesh
Chamboowala for the Respondent Nos. 1 and 2 and Mr. S. D.
Rayrikar - AGP for Respondent No. 3.
2] Civil Application No. 475 of 2014 seeks condonation of delay
and restoration of Writ Petition No. 5527 of 2005, which was
dismissed for non prosecution on 27 June 2013.
3]
Civil Application No. 521 of 2016 seeks condonation of delay
of over 12 months in bringing legal representatives of deceased
Respondent No. 1 on record and if the delay is condoned, to bring
such legal representatives on record.
4] The Writ Petition was initially dismissed on 24 June 2009 by
the following order:
"P.C. :
1. Nobody appears for the petitioners though called out
twice. This position has been continuing since the matter was
adjourned on 17.6.2009. Writ petition stands dismissed for
want of prosecution.
2. Any interim order passed to stand vacated."
5] Thereafter, by order dated 4 January 2013, the petition was
restored. However, no orders were made with regard to restoration
of interim relief which had been specifically vacated by the order
dated 24 June 2009.
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6] Thereafter, on 27 June 2013, the Petition was once again
dismissed with costs of Rs.1,000/-. It was made clear that interim
relief, if granted, stands vacated.
7] The Applicants filed Civil Application No. 475 of 2014 seeking
condonation of delay and restoration on 27 November 2013. If the
Roznama / Farad Sheet in Civil Application No. 475 of 2014 is
perused, it is apparent that neither the Applicants nor their
Advocates were present before the Registrar (Judicial) on number
of occasions. No effective steps were taken in the matter of service
upon the Respondents. On 17 February 2014, the matter appeared
before the Court but none appeared for the Applicants and the
matter was adjourned to 3 March 2014 by way of last chance. The
matter thereafter appeared before the Registrar on 18 March 2014,
15 April 2014 but none appeared for the Applicants. The position
was the same on 12 August 2014, 19 September 2014, 30
September 2014, 29 October 2014, 5 January 2015.
8] On 5 January 2015, although, none were present, the
Registrar (Judicial) made the following order:
" Respondent No. 1 reported to be dead as per Bailiff
report dated 10.03.2014. His legal heirs are not brought on
record till today. Hence, C.A. stands abated against
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Respondent No. 1.
Respondent No. 4/ P.N. Menkudale is reported to be
dead as per Bailiff report. Hence, the Petitioner to take
necessary steps against Respondent No. 4.
S. O. for five weeks."
9] Thereafter, the matter came up on 9 February 2015, 9 March
2015, 6 April 2015, 9 April 2015 but neither Applicants nor their
Advocate appeared before the Registrar (Judicial). The matter was
taken up before this Court on 18 April 2015 but again, none
appeared for the parties.
10] On 16 September 2015, the learned counsel for the
Applicants stated that he has received death certificate of
Respondent no. 1 only on 14 September 2015 and he applied for
time to take steps. Accordingly the matter was adjourned to 30
September 2015.
11] Thereafter, for considerable period, no steps were taken even
to bring on record the legal representatives of Respondent No. 1
or to effect service upon unserved Respondents.
12] Since, the main Writ Petition had been dismissed by order
dated 27 June 2013 and the interim relief therein vacated, the
Respondent No.2 applied for execution. The execution was
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attempted by the Bailiff on 25 January 2016. The Bailiff's report,
amongst other matters, records that the Applicants contacted their
Advocate telephonically and informed the Bailiff that stay order has
been granted by the High Court in this matter and therefore, the
execution may not to proceed. The Bailiff, it appears, granted some
time to produce the copy of the stay order. It is pertinent to record
that as on 25 January 2016, there was no stay order either granted
by this Court or in operation.
13] On 22 February 2016, it appears that execution was once
again attempted by the Bailiff. The Bailiff, in his report, has stated
that he was physically prevented from executing the orders made
by the Civil Court. Mr. Warunjikar, upon reference to the Bailiff's
report has submitted that the Bailiff's report merely states that the
Bailiff was pushed outside the premises and this is not the same as
manhandling the Bailiff. The submission is obviously misconceived.
14] On 23 February 2016, obviously, after the attempts at
execution on 25 January 2016 and 22 February 2016, the
Applicants have filed Civil Application No. 521 of 2016 for seeking to
bring on record the legal representatives of deceased Respondent
No. 1. There is delay of over 12 months in taking out this
application.
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15] The learned counsel for the Respondent No. 2 has pointed
out that the original dates upon the Civil Application are September
2015. This means that the applications were kept ready in
September 2015 but not filed for inexplicable reasons. There
appears to be substance in the contention of the learned counsel
for the Respondent No.2 that the Applicants are only interested in
keeping the matter pending for one reason or the other and on the
basis of the pendency resisting execution, if necessary, by use of
physical force. There is absolutely no explanation as to why, no
application for bringing the legal representatives of deceased
Respondent no. 1 was not made earlier. In the order dated 5
January 2015, it is clearly recorded that the Bailiff's report dated 10
March 2014 indicates that the Respondent no. 1 has expired and
therefore, there is abatement against the legal representatives of
the Respondent no. 1. The learned counsel for the Applicants
specifically stated before this Court on 16 September 2015 that
steps would be taken to bring on record the legal representatives of
the Respondent no.1 now that they have obtained the copy of the
death certificate. Despite all this, no steps were taken and there is
delay of over 12 months.
16] In Civil Application No. 521 of 2016, prayer clause (b) is blank
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to the extent it does not state the quantum of delay. Delay is well
over 12 months. There is absolutely no explanation with regard to
such delay. In the Civil Application, at paragraphs 3 and 4, vague
statements have been made that the Applicants became aware of
the death of the Respondent no. 1 after the notice was returned
unserved to this Court with the remark that Respondent no. 1 has
expired. The notice was returned unserved, according to the order
made by the Registrar (Judicial) on 10 march 2014. There is no
explanation whatsoever with regard to the inordinate delay in taking
steps to bring on record the legal representatives of the Respondent
no. 1. In fact, vague statements have been made in the Civil
Application perhaps realizing that there was absolutely no cause,
much less any sufficient cause for such inordinate delay. Besides,
there is no explanation as to the discrepancy of dates. It does
appear that the application was ready in September 2015 but was
filed only on 23 February 2016 that too after physically preventing
the Bailiff to execute the decree on 25 January 2016 and 22
February 2016.
17] Without disclosure of true and correct facts, this Court on 24
February 2016, was persuaded to take up Civil Application No. 521
of 2016 at the stage of production and make an order of status quo.
All that was represented was that execution is imminent and
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therefore, protection is necessary.
18] Since, there is absolutely no cause shown in the Civil
Application No. 521 of 2016 for the delay and further, the conduct
of the Applicants as evident from the manner in which they have
pursued the proceedings in the main petition, application for
restoration, as also the present petition, there is no case made out
for condonation of inordinate and unexplained delay. The conduct of
the Applicants is also such as disentitles them to any discretionary
relief. The Applicants informed the Bailiff that there was a stay order
in operation, when in fact, there was none. The Applicants have
physically prevented the Bailiff from executing the Court decrees.
For all these reasons, Civil Application No. 521 of 2016 is hereby
dismissed.
19] The Civil Application No. 475 of 2014, which is for restoration
of the Petition and for condonation of delay is also liable to be
dismissed. In the first place, as indicated in the Roznama / Farad
Sheet, the Applicants have not been taking steps to serve the
unserved Respondents despite grant of several opportunities.
Further, the Civil Application is already ordered to be abated as
against the legal representatives of deceased Respondent No. 1.
On account of dismissal of Civil Application No. 521 of 2016, this
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order of abatement has attained finality, at least in so far as this
Court is concerned. The Writ Petition was dismissed on 27 June
2013. Restoration was applied for on 27 November 2013 and that
too, after considerable delay. Now, we are in March 2016 and till
date, the Applicants have not taken steps to serve the
Respondents. But rather, have permitted the application to be
abated as against the legal representatives of the Respondent No.
1. The reasons set out in the application seeking restoration hardly
inspires any confidence. Considering that the Petition had been
dismissed earlier on one occasion, it was necessary for the
Applicants to be more diligent in the matter. The Applicants have
been far from diligent. The lack of diligence on the part of the
Applicants is evident, from the manner in which the Applicants have
failed to take steps to complete service in Civil Application No. 475
of 2014. For all these reasons, Civil Application No. 475 of 2014 is
also hereby dismissed.
20] On 24 February 2016, when this Court was persuaded to
grant status quo, Mr. Warunjikar had contended that after the
Petition was dismissed on 24 June 2009 and the same was
restored on 4 January 2013, interim order granted by this Court on
24 August 2005 was in operation. However, if the order dated 4
January 2013, by which, the Petition was restored is perused, there
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is no specific order reviving the interim relief already granted, even
though, the order dated 24 June 2009 by which the Petition was
dismissed, had made it clear that interim order stands vacated. In
any case, by order dated 27 June 2013, the Writ Petition was once
again dismissed for non prosecution with costs of Rs.1,000/- and
the interim relief, if any, was vacated.
21] Mr. Warunjikar submitted that once a petition is restored,
automatically, the interim orders made therein, revive. In this regard,
he placed reliance upon the decision of the Hon'ble Apex Court in
the case of Vareed Jacob vs. Sosamma Geevarghese & Ors.1 In
this matter, it is not necessary to decide this issue, particularly since
on 24 February 2016, there was no interim order in operation, since,
the petition itself had been dismissed on 27 June 2013 and the
interim order, if any, vacated. The order dated 27 June 2013, till
date, has not been set aside. That apart, the Hon'ble Apex Court in
the case of Vareed Jacob (supra) has approved the decision in the
case of Shivaraya vs. Sharnappa2. In fact, the said judgment has
been quoted in paragraph 17, which is a part of the majority
judgment and the same reads thus:
"17. In the case of Shivaraya v. Sharnappa it has been held
that the question whether the restoration of the suit revives
ancillary orders passed before the dismissal of the suit
1 (2004) 6 SCC 378
2 AIR 1968 Mysore 283
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depends upon the terms in which the order of dismissal is
passed and the terms in which the suit is restored. If the
court dismiss the suit for default, without any reference to the
ancillary orders passed earlier, then the interim orders shall
revive as and when the suit is restored. However, if the court
dismisses the suit specifically vacating the ancillary orders,
then restoration will not revive such ancillary orders. This
was a case under Order 39."
22] In the present case, the Petition was dismissed for default on
24 June 2009 and this Court had specifically vacated the interim
relief. Thereafter, by order dated 4 January 2013, no doubt, the
Petition was restored but there was no order made with regard to
restoration of interim reliefs. If, therefore, the principle in Shivaraya
(supra) is to be applied, then, it cannot be said that the interim relief
had been restored in this matter. In any case, this issue, does not
really arise in the present matter, since, by order dated 27 June
2013, the Petition was once again dismissed for non prosecution
and the interim orders were vacated. The application for setting
aside the order dated 27 June 2013, has since been dismissed.
23] Accordingly, Civil Application No. 475 of 2014 as well as Civil
Application No. 521 of 2016 are hereby dismissed with costs
assessed at Rs.5,000/-. The status quo order granted on 24
February 2016 is also vacated.
Chandka (M. S. SONAK, J.)
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24] At this stage, the learned counsel appearing for the
Applicants seeks for continuation of status quo order granted on 24
February 2016 for a period of six weeks.
25] The records would indicate that the main petition was
dismissed on 27 June 2013. From that date onwards, there were
no interim orders in operation. The circumstances in which the
status quo order was made on 24 February 2016 have already been
referred to in the order. In these circumstances, the request for
continuation of status quo order is declined.
Chandka (M. S. SONAK, J.)
