1 902 wp 4544.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4544 OF 2010 The Nav Madhuban Co-operative Society Ltd. .. Petitioner Vs. Mr. Dashrath Ramchandra Satav & Anr. .. Respondents Mr.Sudhir V. Sadavarte for the Petitioner. Mr. Madhav J. Jamdar for the Respondents. CORAM: K.K. TATED, J. DATE: 5th AUGUST, 2011 PC: 1. Heard the learned counsel for the parties. 2. Rule. 3. Rule made returnable forthwith. 4. By consent, matter is taken on board for final hearing at the stage of admission. 5. By this Petition under Article 227 of the Constitution of India, the Petitioner – original Plaintiff challenges the order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division at 2 902 wp 4544.10.doc Pune in Miscellaneous Application No.711 of 2007 rejecting the Petitioner’s Application for condonation of delay in filing the Application for setting aside the order of dismissal in Special Civil Suit No. 1761 of 1996. 6. A few facts of the matter are as under: The Petitioner – original Plaintiff filed Special Civil Suit No. 1761 of 1996 in the Court of Civil Judge Senior Division at Pune, on 23rd September, 1996 for specific performance of contract. The said suit was dismissed for default by the IIIrd Additional Judge, Small Causes Court & Joint Civil Judge Senior Division, Pune on 28th June, 2006. Thereafter, the Petitioner filed Application under Order 9 Rule 9 of Civil Procedure Code for setting aside the order of dismissal passed in Special Civil Suit No. 1761 of 1996 on 30th August, 2007. As there was delay in filing the Application under Order 9 Rule 9 of the Civil Procedure Code, the Petitioner preferred an Application for condonation of delay being Miscellaneous Application No.711 of 2007. In that Application, the Respondent – original Defendants filed their affidavit-in-reply and opposed the same. The Petitioner also examined the 3 902 wp 4544.10.doc witness Mr.Mohammed Ali Reza Shirazi. After considering the pleadings of both the sides, the Joint Civil Judge Senior Division, Pune by its impugned order dated 19th January, 2010 dismissed the Petitioner’s Application for condonation of delay in filing Application for setting aside order of dismissal, under Order 9 Rule 9 of the Civil Procedure Code. Therefore, the present Petition. 7. The learned counsel appearing on behalf of the Petitioner submits that the impugned order dated 19th January, 2010 passed by the court below is against justice, equity and good conscience. He submits that the Petitioner made out sufficient cause for condonation of delay and yet the Trial Court rejected their Application. He submits that the Special Civil Suit No. 1761 of 1996 came to be dismissed for default as no one appeared on their behalf when the matter was called out. He submits that they learnt about the dismissal order in the month of November, 2006 when the Petitioner through their office bearer enquired with advocate Mr. Shriniwasan about the stage of suit. At that time, their advocate informed that the suit was dismissed on 28th June, 2006. Thereafter, their advocate suggested them to bring certified copy of bye-laws of their 4 902 wp 4544.10.doc society from the office of the Deputy Registrar, Co-operative Societies, Pune. Therefore, they made an Application for certified copies of bye laws of the society. In the meanwhile, they consulted an other advocate to inform/advice whether it is necessary to have a certified copy of bye laws of the society for preferring Application for setting aside the dismissal order dated 28th June, 2006 and thereafter, they immediately applied for certified copies of order dated 28th June, 2006, on 23rd November, 2006. The said certified copies were received on 8th February, 2007 and they preferred the Application for setting aside dismissal order under Order 9 Rule 9 of the Civil Procedure Code and Application for condonation of delay on 30th August, 2007. The learned counsel for the Petitioner submits that under the bona-fide belief based on the advice of their earlier advocate, the Petitioner did not move the Application for restoration earlier as they waited for certified copies of bye laws. It was only in the last week of August, 2007 when the Petitioner had second opinion about the steps to be taken in the matter, it transpired that for the purpose of filing restoration application, certified copies of bye laws were not necessary and therefore, they immediately applied for certified 5 902 wp 4544.10.doc copies on 23rd November, 2006. The same received on 8th February, 2007 and they filed the Application under Order 9 Rule 9 of the Civil Procedure Code and Application for condonation of delay on 30th August, 2007. He submits that the delay was not intentional, the same was caused due to wrong advice received by them from their previous advocate. He submits that if delay is not condoned, irreparable loss and injury will be caused to them. On the basis of these submissions, the learned counsel appearing on behalf of Petitioner submits that the impugned order passed by the trial court dated 19th January, 2010 rejecting their application for condonation of delay be set aside and Application filed by them for condonation of delay be allowed. 8. On the other hand, the learned counsel appearing on behalf of the Respondent vehemently opposed the present Petition. He submits that the Trial Court has considered all the facts on record and considering those facts, rejected Petitioner’s Application for condonation of delay and therefore, it is not necessary to interfere with the said order in the writ jurisdiction. He further submits that the Petitioner in his 6 902 wp 4544.10.doc Application for condonation of delay made false statement, and therefore, the Petitioner is not entitled to any equitable order from this Court. He submits that the Petitioner in his Application for condonation of delay stated that their earlier advocate suggested them that they would require the certified copy of bye laws for filing the Application for restoration of the suit. He submits that the Petitioner never applied for certified copies of bye laws, they had applied for amendment of their bye laws and the said Application was rejected by the Deputy Registrar, Co-operative Societies, Pune, by order dated 4th June, 2007. This itself shows that the Petitioner has made false statement in their application for condonation of delay and therefore, they are not entitled to condonation of delay from the court of law. In support of these submissions, he relies on the judgment in the matter of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others reported in AIR 1994 SCC 853. In that judgment, the Apex Court held that if a person makes a false statement for obtaining any order from the court, he is not entitled to any relief claimed in his application. In para 7 of the judgment the Apex Court held as under: 7 902 wp 4544.10.doc “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. 9. For opposing the present Petition, the Respondents filed their affidavit-in-reply dated 8th February, 2011. On the basis of these submissions, the learned counsel appearing on behalf of Respondents submits that there is no substance in the present Petition. He further submits that the Petitioner failed to make out any sufficient cause for condonation of delay in preferring the Application under Order 9 Rule 9 of the Civil Procedure Code and therefore, the Petition is liable to be dismissed. 10. I have gone through the impugned order dated 19th January, 2010 passed by the trial court, Application filed by the Petitioner under Order 9 Rule 9 of the Civil Procedure Code, 8 902 wp 4544.10.doc Application filed by the Petitioner for condonation of delay, Affidavit-in-reply filed by the Respondent. In the present case, Special Civil Suit no.1761 of 1996 was transferred from one court to other court and therefore, the office of the court issued notices to both the sides. The notice issued to the Petitioner returned un-served with the Bailiff’s report “on the said address neither Petitioner’s registered office exists nor the person Mr. Sunil P. Joseph resides”. Considering the report of Bailiff, the Trial Court dismissed the Petitioner’s suit on 28th June, 2006. On that date, neither on behalf of Petitioner nor on behalf of Respondents anybody was present. Usually the clients always see their advocates as and when they call them for instructions. In the present case, the Petitioner was all the while under the belief that his advocate will take the necessary care of their matter. But when in the month of November, 2006 they made enquiry with their advocate they learnt about the dismissal order dated 28th June, 2006 passed by the Trial Court. Thereafter, they contacted their advocate and enquired with him the procedure for restoration of the suit. At that time, the advocate informed them to bring certified copy of the bye laws. In the meanwhile, they sought second opinion from other 9 902 wp 4544.10.doc advocate who informed them that it was not necessary to have a certified copy of bye laws for filing Application under Order 9 Rule 9 of the Civil Procedure Code. On the basis of the said opinion, they immediately applied for certified copies on 23rd November, 2006 and the same were collected on 8th February, 2007. As soon as they received the certified copy, they filed an Application for setting aside the dismissal order and for condonation of delay, on 30th August, 2007. It is admitted fact that there was a delay on the part of Petitioner to take immediate steps but the reason disclosed by the Petitioner in their Application for condonation of delay and in the present Petition shows that the Petitioner made out sufficient cause for condonation of delay. These facts are not taken into consideration by the courts below. 11. It is to be noted that the Apex Court in the matter of N.Balakrishan vs. M Krishnamurty reported in 1998 (7) SCC 123 held that in the absence of anything showing malafides or dilatory tactics the court should normally condone the delay. Para 11 of the said authority reads thus: “11. Rules of limitation are not meant to destroy the 10 902 wp 4544.10.doc rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” 12. The authority cited by the learned counsel appearing on behalf of Respondent is not applicable on the facts and circumstances of the present case. In this case, the Petitioner relied on the advice given by their advocate and therefore, there is a delay in preferring the Application for setting aside the dismissal order 11 902 wp 4544.10.doc dated 28th June, 2006. Considering these facts and the law laid down by the Apex Court, I am of the opinion that the impugned order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division, Pune in Miscellaneous Application No. 711 of 2007 is liable to be set aside. Hence, Writ Petition is allowed on following terms and conditions: a) The impugned order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division, Pune in Miscellaneous Application No.711 of 2007 is set aside. b) Miscellaneous Application No.711 of 2007 dated 30th August, 2007 filed by the Petitioner for condonation of delay is allowed. c) Petitioner to pay a costs of Rs. 5,000/- to the Respondents within four weeks from today. (K.K.TATED,J.)