Bombay High Court
Rashid Peer Mohammed Shaikh And ... vs Ismail Issak Shaikh And Ors on 4 May, 2017
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9691 OF 2014
1] Shamshad Shamshuddin Attar ]
Age : 56 years, Occ : Business ]
]
2] Javed Shamshuddin Attar ]
Age : 33 years, Occ : Business ]
]
3] Shakil Shamshuddin Attar ]
Age : 31 years, Occ : Business ]
]..... Petitioners
2] Gafar Ismail Attar ] (Original Applicants/
Age : 58 years, Occ : Business ] Defendants)
versus
Ismail Issak Shaikh ]
since deceased through Lrs ]
]
1/1 Umar Ismail Shaikh ]
Age : 40 years, Occupation Business ]
Residing at 366 Ganj Peth ]
Chand tara Chowk, Pune-411 042 ]
]
1/2 Gulzar Ismil Shaikh ]
Age : 35 years, Occupation : Driver ]
]
1/3 Talat Ismile Shaikh ]
Age : 32 years, occupation Well to do ]
]
1/4 Nasima alias Shanaz Ismil Shaikh ]
Respondents No.1/2 to 1/4 Residing ]
at Galli No.15, S.No.55, near Pitashree ]
Ashram Bhayodaya Nagar, ]
Kondhwa (Khurd), Pune 411048 ]
]
2] Yusuf Issak Shaikh ]
Age : 43 years, Occ : Business ]..... Respondents
residing at 366, Ganj Peth, ] (Original Respondents/
(Mahatma Phule Peth), Pune-411042 ] Plaintiffs.)
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ALONG WITH
WRIT PETITION NO.9692 OF 2014
Mehmud Ratanmiya Attar ]
Age 61 years, Occ : Business ]..... Petitioner
Residing at 366, Ganj Peth ](Original Applicant/
(Mahatma Phule Peth) ] Defendant)
Pune - 411 042 ]
versus
Ismail Issak Shaikh ]
since deceased through LRs ]
]
1/1 Umar Ismail Shaikh ]
Age : 40 years, Occupation Business ]
Residing at 366 Ganj Peth ]
Chand tara Chowk, Pune-411 042 ]
]
1/2 Gulzar Ismil Shaikh ]
Age : 35 years, Occupation : Driver ]
]
1/3 Talat Ismile Shaikh ]
Age : 32 years, occupation Well to do ]
]
1/4 Nasima alias Shanaz Ismil Shaikh ]
Respondents No.1/2 to 1/4 Residing ]
at Galli No.15, S.No.55, near Pitashree ]
Ashram Bhayodaya Nagar, ]
Kondhwa (Khurd), Pune 411048 ]
]
2] Yusuf Issak Shaikh ]
Age : 43 years, Occ : Business ]..... Respondents
residing at 366, Ganj Peth, ] (Original Respondents/
(Mahatma Phule Peth), Pune-411042 ] Plaintiffs.)
ALONG WITH
WRIT PETITION NO.9693 OF 2014
1] Anwar Khawajamiya Shaikh ]
Age : 43 years, Occ : Business ]
]
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2] Rafiq Khwajamiya Shaikh ]
Age : 41 years, Occ : Business ]
]
Both residing at 366, Ganj Peth ]..... Petitioners
(Mahatma Phule Peth) ] (Original Applicants/
Pune - 411 042 ] Defendants.)
versus
Ismail Issak Shaikh ]
since deceased through LRs ]
]
1/1 Umar Ismail Shaikh ]
Age : 40 years, Occupation Business ]
Residing at 366 Ganj Peth ]
Chand tara Chowk, Pune-411 042 ]
]
1/2 Gulzar Ismil Shaikh ]
Age : 35 years, Occupation : Driver ]
]
1/3 Talat Ismile Shaikh ]
Age : 32 years, occupation Well to do ]
]
1/4 Nasima alias Shanaz Ismil Shaikh ]
Respondents No.1/2 to 1/4 Residing ]
at Galli No.15, S.No.55, near Pitashree ]
Ashram Bhayodaya Nagar, ]
Kondhwa (Khurd), Pune 411048 ]
]
2] Yusuf Issak Shaikh ]
Age : 43 years, Occ : Business ]..... Respondents
residing at 366, Ganj Peth, ] (Original Respondents/
(Mahatma Phule Peth), Pune-411042 ] Plaintiffs.)
ALONG WITH
WRIT PETITION NO.9694 OF 2014
1] Rashid Peer Mohammed Shaikh ]
Age : 31 years, Occ : Business ]
]
2] Nazmin Ahmed Shaikh ]
Age : 27 years, Occ : Business ]
]
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Both residing at 366, Ganj Peth ]..... Petitioners
(Mahatma Phule Peth) ] (Original Applicants/
Pune - 411 042 ] Defendants.)
versus
Ismail Issak Shaikh ]
since deceased through LRs ]
]
1/1 Umar Ismail Shaikh ]
Age : 40 years, Occupation Business ]
Residing at 366 Ganj Peth ]
Chand tara Chowk, Pune-411 042 ]
]
1/2 Gulzar Ismil Shaikh ]
Age : 35 years, Occupation : Driver ]
]
1/3 Talat Ismile Shaikh ]
Age : 32 years, occupation Well to do ]
]
1/4 Nasima alias Shanaz Ismil Shaikh ]
Respondents No.1/2 to 1/4 Residing ]
at Galli No.15, S.No.55, near Pitashree ]
Ashram Bhayodaya Nagar, ]
Kondhwa (Khurd), Pune 411048 ]
]
2] Yusuf Issak Shaikh ]
Age 43 years, Occ : Business ]
]..... Respondents/
3] Noora Mustajab Khan ] (Respondents Nos.1
Age 32 years, Occ : Business ] and 2 = original
] Respondent Nos.1
4] Nasir Kamal Shaikh ] and 2/Plaintiffs and
Age 37 years, Occ : Business ] Respondent Nos.3
] and 4 = original
Residing at 366, Ganj Peth, ] Respondents Nos.3 &4/
(Mahatma Phule Peth), Pune-411042 ] Defendants Nos.3 & 4.
Mr. R S Datar for the Petitioners in all the Petitions.
Mr. B G Lingade for the Respondents in all the Petitions.
CORAM : R. M. SAVANT, J.
DATE : 04th MAY 2017
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ORAL JUDGMENT
1 Rule in all the above Petitions, with the consent of the learned
counsel for the parties made returnable forthwith and heard.
2 The above Petitions take exception to the orders all dated
28/08/2014 passed by the learned District Judge - 3 Pune. By the said orders
the applications filed by the Petitioners for condonation of delay in filing the
Appeals against the ex-parte decree came to be rejected. The delay was of 183
days (subject matter of Writ Petition No.9691 of 2014), 80 days (subject matter
of Writ Petition No.9692 of 2014), 183 days (subject matter of Writ Petition
No.9693 of 2014) and 80 days (subject matter of Writ Petition No.9694 of
2014). It is required to be noted that the said applications were opposed to on
behalf of the Decree Holder by filing a Reply dated 21/12/2013. It was stated
in the said reply that if the applications are allowed, then costs of Rs.5000/-
may be awarded to the Opponent i.e. the predecessor of the Respondents
herein who are his heirs.
3 The Lower Appellate Court however did not deem it fit to exercise
its discretion in favour of the Petitioners on the ground that there was no
justifiable reason mentioned for the delay which has occasioned in filing of the
Appeals and accordingly rejected the applications by the impugned order dated
28/08/2014.
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4 During the course of hearing of the above Writ Petitions, the
learned counsel appearing on behalf of the Respondents herein Shri B G Ligade
fairly stated that the Respondents have no objection if the delay is condoned,
however, the same would be subject to payment of costs by the Petitioners in
each of the above Petitions. He however requested that if the delay is
condoned, the Appeals be directed to be disposed of within a particular time
frame, since they have been originally filed in the year 2012.
5 In view of the fair stand taken by the learned counsel for the
Respondents herein in my view, the above Petitions can be conveniently
disposed of by issuing following directions :-
A] The impugned orders all dated 28/08/2014 would stand quashed
and set aside The Applications for condonation of delay would
stand allowed. Resultantly, the delay in filing the Appeals would
stand condoned. Each set of Petitioners to pay costs of Rs.5,000/-
to the Respondents i.e. total amount of Rs.20,000/- in all the four
Petitions.
B] The Registry of the Lower Appellate Court is directed to register
the Appeals in view of the fact that the delay is now condoned by
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the instant order.
C] The Appeals since they arise out of an ex-parte decree and since
they have been filed in the year 2012 are directed to be disposed
of latest by 31/12/2017.
D] Needless to state that the contentions of the parties on merits are
kept open for being urged before the Lower Appellate Court.
Further needless to state that the Appeals would be tried on their
own merits and in accordance with law.
E] The execution of the decree is stayed for a period of six weeks
from date. The Petitioners thereafter would be entitled to file an
application before the Lower Appellate Court for continuance of
the stay which application would also be tried on its own merits
and in accordance with law.
F] The above Writ Petitions are allowed to the aforesaid extent. Rule
in all the Petitions is accordingly made absolute with parties to
bear their respective costs.
[R.M.SAVANT, J]
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