Arun Krushnaji Pawar , Through ... vs Mariyambi Ayub Mesman And Anr
2017 Latest Caselaw 9719 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.13527 OF 2017

        Arun Krushnaji Pawar                                         ]
        Through his Power of Attorney Holder                         ]
        Anjalu Arun Pawar                                            ]
        Age : 56 years, Occ. Household,                              ]
        R/of Dattachaya Housing Society,                             ]
        Shahupuri, Satara, Dist. Satara.                             ] .... Petitioner
                     Versus
        1. Mariyambi Ayub Mesman                                     ]
           Age : 65 years, Occ. Household,                           ]
                                                                     ]
        2. Tabassum Ayub Mesman                                      ]
           Age : 35 years, Occ. Household,                           ]
                                                                     ]
        Both residents of Plot No.11, Sambhaji Nagar,                ]
        Taluka and District Satara                                   ] .... Respondents


        Mr. Manmath S. Athalye for the Petitioner.

        Mr. V.S. Talkute for the Respondents.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 18 TH DECEMBER 2017.


        ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Athalye, learned counsel for the

Petitioner, and Mr. Talkute, learned counsel for the Respondents.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioner is challenging the order dated 21 st November 2017 passed

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by the Joint Civil Judge, Senior Division, Satara, thereby dismissing the

Civil Miscellaneous Application No.9 of 2017. The said application was

filed by the present Petitioner for condonation of delay of 807 days in

filing the application for restoration of the Restoration Application.

3. The case of the Petitioner is that, the Respondents herein have

filed a Special Civil Suit bearing No.140 of 2007 against him and his two

brothers for recovery of possession of the suit property on the ground of

non-payment of rent and bonafide need. Petitioner was Defendant No.3

in the said Suit. The Suit proceeded ex-parte, as none of the Defendants

appeared. According to the Petitioner, on the assurance given by his

brothers that they would make proper representation in the trial and his

presence was not necessary, he remained unaware of the proceedings

under bonafide impression. However, as the Suit came to be decided ex-

parte by the Judgment and Order dated 6th October 2008, the

Miscellaneous Civil Application No.11 of 2009 was moved by the

Petitioner and his brothers for setting aside the ex-parte judgment.

During pendency of the said application, in pursuance of the family

arrangement between him and his brothers, the suit property came to

his share. However, since 2010, Petitioner also started suffering from

serious ailments like heart trouble, kidney stone, which put restrictions

on his movements. Further he also suffered from forgetfulness, the

decease of parkinson and various other mental ailments like the anxiety

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disorder, as a result of which, he could not attend hearing of

Miscellaneous Civil Application No.11 of 2009. Hence, it came to be

dismissed for default on 29th October 2014. Petitioner came to know

about the same only when the Bailiff came to execute possession

warrant. Immediately thereafter, Petitioner contacted his brothers and

then filed the Civil Miscellaneous Application No.9 of 2017 before the

Trial Court for condonation of delay of 807 days in filing the application

for restoring the Restoration Application.

4. In support of his application, Petitioner examined himself and two

Doctors; one Dr. Ravindra Harshe and another Dr. Dnyanesh Kharade.

Petitioner has also examined his wife, who is his Power of Attorney

Holder. The Trial Court, after appreciating the evidence on record, held

that, no sufficient ground is made out to explain the delay, which was

not only considerable but inordinate and, accordingly, rejected the said

application.

5. While challenging this impugned order of the Trial Court, the

submission of learned counsel for the Petitioner is that, the Trial Court

has not relied upon the evidence of Petitioner's wife on the count that,

she being power of attorney holder, her evidence needs to be confined or

restricted only to the facts known to her and she is also not aware of the

facts. The Trial Court further held that, the evidence of both the Medical

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Practitioners do not disclose that Petitioner was totally unable to attend

the proceedings on account of his ailments. Accordingly, the Trial Court

found that absolutely no sufficient cause was made out to condone the

delay and hence rejected the application. According to learned counsel

for the Petitioner, the impugned order passed by the Trial Court,

therefore, calls for the interference; especially when some facts have

remained unchallenged on record.

6. Per contra, learned counsel for the Respondents has supported the

impugned order for the reasons stated therein.

7. In this case, it is undisputed position that, along with the

Petitioner, his two brothers were also very much parties to the Suit filed

by the Respondents. It is also pertinent to note that, along with the

Petitioner, his two brothers had filed application for restoration of the

Suit, when the Judgment was passed ex-parte. Assuming for the sake of

arguments that, the Petitioner was unable to look after the said

proceedings or he was given some assurance, there is no explanation as

to why his two brothers did not pursue the said Restoration Application

or even the Suit. As per the case of the Petitioner, the suit property was

given to his share in the meanwhile and, therefore, they did not pursue

the Court proceedings. To substantiate this case, at-least, there should

be some material on record, but no material is produced on record to

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that effect and, therefore, one can conveniently consider it as a

convenient plea taken to dodge the ex-party decree of eviction.

8. Moreover, to substantiate the reason given by the Petitioner for

not pursuing Restoration Application, Petitioner himself has not entered

into witness box, but relied on the evidence of his wife, giving her the

power of attorney. It was for the Petitioner himself to depose about the

facts, which were exclusively within his knowledge; especially when the

evidence of both the Doctors clearly go to show that the Petitioner was

not unable to do so, as the ailments from which he was suffering were

not such that they had made him bed-ridden. The evidence of his wife

also clearly goes to show that the Petitioner was very much looking after

the shop of Pharmacy and he was attending the same. Even the license

of the said shop stands in his name and he has renewed the same. She

has admitted that she is not herself a 'Pharmacist'. Therefore, it follows

that her husband, i.e. the Petitioner, is still looking after the work as

'Pharmacist' and, therefore, the case made out that, on account of his

ailments, he was not in a position to look after the court proceedings of

Restoration Application, cannot be accepted at all.

9. Even as regards the evidence of Dr. Ravindra Harshe, he has

admitted that, whatever the medicines which are being given to the

Petitioner are only to reduce his anxiety. He has also admitted that, the

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heart ailment, from which the Petitioner is suffering, is not of a serious

nature. The evidence of Dr. Shaikh, who is examined to prove that the

Petitioner was suffering from mental ailment, goes to reveal that the

Petitioner is suffering from Organic Brain Syndrome i.e. he is suffering

from anxiety disorder. However, in his cross-examination, he has

admitted that, the Organic Brain Syndrome is not an illness.

10. Moreover, if the Petitioner can run the Chemist Shop, which

requires the person to be fully in his senses and in a proper state of mind

in order to give the medicines as per the prescription, then, it can hardly

be accepted that he was not in a position to come before the Court to give

instructions to his counsel for the purpose of pursuing the Restoration

Application.

11. Thus, on the face of it also, the reasons given by the Petitioner for

condonation of delay being not sufficient, the Trial Court was fully

justified in rejecting such application; especially when the application is

filed not by other two brothers of the Petitioner, who were very much

parties to the Suit, but by the Petitioner alone and, that too, without

producing any material on record to show that any family arrangement

was arrived at between the parties in which the suit property came to

his exclusive share.

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12. The impugned Judgment and Order passed by the Trial Court,

therefore, does not call for any interference and hence, this Writ Petition

stands dismissed.

13. Rule is discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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