Bombay High Court
Syed Abdul Wahab Syed Abdullah vs The State Of Maharashtra And ... on 22 March, 2016
Bench: S.P. Deshmukh
1 WP-2856.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2856 OF 2016
Syed Abdul Wahab S/o Syed Abdullah
Age: 72 yrs, Occu- Business
R/o 6-1-57 Flat no. 1101 and 1102
Mount Nasir Saifabad, Hyderabad
Telangana State. ...PETITIONER
(ori. Respondent No. 2)
versus
1. The State of Maharashtra
through collector, Aurangabad.
2.
Syed Murtuza Ali S/o Zahid Ali,
Age-24 yrs, Occu-service,
R/o-Purani Haveli, Hyderabad
Telangana State.
3. Syed Zahid Ali,
Age-47 yrs, occu-Service,
Purani Haveli, Hyderabad
Telangana State
through their GPA holder
Dr. Pramod S/o Eknathrao Jadhav,
Age-52 yrs. Occu- Medical practitioner,
R/o-Khadkeshwar, Aurangabad
tq & Dist. Aurangabad. ...RESPONDENTS
(Respdts No. 2 and 3 are
ori. applicants)
.....
Mr. S.D. Hivrekar, Advocate for petitioner
Mr. U.S. Mote, AGP for respondent No. 1
Mr. Avinash M. Nagarkar, Advocate for respondents No. 2 and 3
.....
CORAM : SUNIL P. DESHMUKH, J.
DATED : 22nd MARCH, 2016.
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard learned counsel for
parties finally, with consent.
2 WP-2856.16
2. This petition has been moved against order dated 04-02-2016
passed by civil judge, senior division, Aurangabad, by petitioner -
respondent No. 2 in miscellaneous civil application No. 310 of 2014
filed by the present respondents No. 2 and 3 - applicants whereunder
application for condonation of delay in preferring application for setting
aside abatement order dated 03-01-2011 in miscellaneous application
requiring judicial inquiry (for short "MARJI") No. 812 of 2002, upon
death of Muneerunissa Begum, who died on 14-01-2001, has been
allowed.
3. Muneerunissa Begum had filed an application bearing MARJI No.
812 of 2002 for heirship certificate upon death of her mother, namely,
Zainab Begum. Present petitioner was original respondent No. 2 in said
MARJI. After death of Muneerunissa Begum the court has taken into
account that despite chances neither applicants in miscellaneous civil
application No. 310 of 2014 present respondents No. 2 and 3 have led
any additional evidence nor filed any pursis closing their evidence. So,
it came to be closed under orders of the Court. From evidence of Dr.
Pramod Jadhav, general power of attorney of deceased Muneerunissa
Begum, it emerges that, immediately upon death of Muneerunissa
Begum, same had been communicated to the present respondents No.
2 and 3. The application had been moved on the ground that there
was non communication of abatement order dated 03-01-2011 and
that they were residing abroad. Present respondent No. 2 - applicant
No. 1 in miscellaneous civil application 310 of 2014 happens to be son
of deceased Muneerunissa Begum whereas present respondent No. 3 -
3 WP-2856.16
applicant no. 2 is her husband. It has emerged on record that present
respondent No. 2 had filed application on 03-01-2011 for permitting
to proceed with the matter. So also, it emerges that Dr. Pramod Jadhav
has admitted that after demise of Muneerunissa Begum, he had field an
application to keep the proceeding alive in respect of legal heirs of
Muneerunissa Begum. The reasons as have been given for the delay
about unawareness of the death of Muneerunissa Begum and passing
of abatement order do not appear to have sound basis. In fact, in the
circumstances, although court has considered all these aspects and
also further considered that there are no just and reasonable grounds
to condone the delay, yet, the court went on to allow the application,
such order can seldom be sustainable in law.
4. Learned counsel for petitioner relies on a decision in the case of
Rajendra Namdeorao Akre Vs. Rajkumar Bhalerao Balbudhe and another
reported in 2016(1) Mh.L.J. 184 wherein it appears to have been
considered that sufficient cause/explanation for condonation of delay
cannot be dispensed with and costs cannot be a substitute for absence
of reasons to condone delay.
5. Having regard to aforesaid, order dated 04-02-2016 in
miscellaneous civil application No. 310 of 2014 passed by civil judge,
senior division, Aurangabad is untenable and stands set aside.
6. As such, writ petition is allowed in terms of prayer clause "b".
Rule is made absolute accordingly.
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7. Learned counsel for respondents No. 2 and 3 at this stage makes
a request that respondents shall be allowed to file another application
for heirship. It is open for the respondents to file such an application as
would be available and maintainable in law.
Sd/-
( SUNIL P. DESHMUKH, J. )
MTK
