IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.133 OF 2008 IN WRIT PETITION NO.9424 OF 2007 Badhya Buchayya Ashayya (since deceased) by his legal heir 1. Badhya Vitthalrao Ashayya since deceased by his legal heirs 1A.Smt.Badhya Renuka Vitthalrao & Ors. ...Petitioners V/s. Smt.Durga Devendra Kola ...Respondent ...... Mr.G.S.Godbole i/b Mr.S.S.Kanetkar for Petitioners. Ms.R.C.Nichani for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 30, 2009. JANUARY 30, 2009. JANUARY 30, 2009. P.C. 1. Heard Counsel for the parties. 2. This Petition is for review of order dated 9th July 2008. Essentially two reasons have been recorded while dismissing the Writ Petition. : 2 : 3. The first reason is that the Judgment and Decree passed by the Trial Court on 2nd February 1983 in Suit No.4072 of 1980 was already set-aside by this Court in Appeal from Order No.167 of 1983 decided on 24th August 1984 and hence, cannot be once again challenged before this Court. Insofar as this reason is concerned, the argument of the Petitioners is that this Court in Appeal from Order merely considered the question as to whether the City Civil Court had jurisdiction but did not deal with the finding recorded by the City Civil Court in its decision dated 2nd February 1983. There is no difficulty in accepting this submission. However, what is overlooked by the Petitioners is that the finding recorded by the Trial Court merged in the subsequent decree passed by the Trial Court after the order of remand passed by this Court. The said decree was made subject matter of challenge in First Appeal No.1132 of 1984. The said Appeal, however, was subsequently dismissed as not maintainable; against which, the Petitioners carried the matter in Appeal by way of Letters Patent Appeal No.222 of 2000 but the same was : 3 : withdrawn on 24th September 2004. Referring to these facts in my order under review, I have noted that the Petitioners allowed the said decree to become final. The grievance made before me at the hearing of the Writ Petition, as is noted in Paragraph 4 of my order under review, was that the Petitioners were not permitted to adduce additional evidence. In the context of that grievance, I have found that if the decree is allowed to become final, the grievance was devoid of merits. Now the Counsel for the Petitioners, in review, contends that the Letters Patent Appeal was allowed to be withdrawn with liberty to the Petitioners to file Writ Petition and/or other appropriate proceedings against the Judgment and Decree passed by the Trial Court dated 5th November 1984. 4. The fact remains that the Petitioners did not resort to remedy of Writ Petition immediately after the liberty was granted by this Court in terms of the order dated 24th September 2004 passed in the said Letters Patent Appeal. The Petitioners have resorted to remedy of the Writ Petition almost after gap of over three years thereafter. : 4 : 5. Be that as it may, the question is: whether any fruitful purpose would be served by entertaining the Review Petition. In my opinion, the answer is an emphatic ‘NO’. This is so because the Petitioners have not spelt out any tangible reason as to what prevented them to file the Writ Petition soon after the liberty was granted by this Court on 24th September 2004. Instead, the Writ Petition has been filed in December 2007. The only explanation for such inordinate delay given in the original Writ Petition can be traced to paragraph 1.85 which reads thus : "1.85 The Petitioners prays as the Petitioners No.1 & 2 are expired and other legal heirs except the Petitioner No.1(b) is in Mumbai and due to Cardiac surgery on Petitioner No.1(b) he was under treatment and hence any delay in filing this Writ be condoned." 6. Even if we were to consider the explanation given by the Petitioners lateron in the additional affidavit, that does not take the matter any further. The additional affidavit dated 12th March 2008 filed by Badhya Devdas Ashayya, : 5 : Petitioner No.1(B) it is stated as follows: "2. I say that in the month of September/October 2004 I had chest pain and on 11-10[2004 I had severe pain hence I was hospitalized and was admitted in Asian Heart Institute at Bandra Kurla Complex. 3. I further say that after medical examination it was found by the Doctors that there were blocks in the heart and therefore I had to undergo by pass heart surgery in Asian Heart Institute and was operated on 18-10-2004 in Asian Heart Institute. The Discharge Report of the Asian Heart Institute is annexed herewith and marked as ANNEXURE "A". 4. I further say that after the surgery the doctors of Asian Heart Institute advised me to take complete rest. I further say that after taking bed rest I had complication of blood circulation to the heart and my heart was functioning below normal range therefore the Heart Specialist Dr.Jayant Pandit advised me complete rest till further recovery and advised me not to take mental strain and or physical strain at least for 2 years and further told if such precaution is not taken recurrence of second heart attach is possible. 5. I further say that my doctor advised me not to travel and also not to lift any heavy baggage hence I was in medical treatment of the Heart Specialist and still I am continuing the treatment with the same Heart specialist Dr.Jayant Pandit. The medical sheet of Dr.Jayant Pandit is annexed herewith and marked as ANNEXURE "B". 6. I further say that for the above stated reason I being only legal heir presently prosecuting the above case, i : 6 : could not take steps to file Writ Petition immediately and therefore I filed the above Writ Petition in the year 2007." 7. There is one more affidavit which can be adverted to in the context of inaction of the Petitioners to file the Writ petition with utmost despatch. The same is filed once again by Petitioner No.1B dated 14th March 2008 which states as follows : "2. I say that I had undergone open Heart Surgery and I am under treatment of Heart Specialist Dr.Jayant Pandit who has issued medical certificate on 12-3-2008 in the evening, giving details of the heart ailment and post surgery treatment. This Medical Certificate is annexed hereto and marked as ANNEXURE "A". 3. I further say that my doctor advised me not to travel and also not to lift any heavy baggage hence I was in medical treatment of the Heart Specialist and still I am continuing the treatment with the same Heart specialist Dr.Jayant Pandit. 4. I further say that for the above stated reason I being only legal heir presently prosecuting the above case, i could not take steps to file Writ Petition immediately and therefore I filed the above Writ Petition in the year 2007." 8. Even on liberal reading of these two : 7 : affidavits, I have no hesitation in taking the view that the explanation offered is unacceptable. The delay is of more than three years in filing the Writ Petition. The explanation is not only vague but would not persuade me to take the view that the cause mentioned in the two affidavits was such that it totally disabled the Petitioner No.1B to approach the Court for over three years. It is not the case of the petitioner No.1B that he was completely immobile for over three years from September 2004. The fact that he was advised not to take mental or physical stress for two years from the date he was operated or that he is continuing his treatment is an argument of desperation. At any rate, no explanation is offered as to what prevented the other two Petitioners to prosecute their action diligently. Suffice it to observe that the explanation for inaction and indolence for over three years is unacceptable. The Writ Petition filed in October 2007 plainly suffers from laches. 9. To overcome this position, Counsel for the Petitioners would contend that laches is not the : 8 : ground stated in the order under review. Even so, as I stated earlier, no fruitful purpose would be served by reopening the Writ Petition as the same suffers from laches. 10. Counsel for the Petitioners submits that the Writ Petition cannot be thrown out on the ground of laches as no prejudice would be caused to the Respondent, who is already in possession. The fact that no prejudice would be caused to the Respondent, by itself, cannot be the basis to excuse the inexplicable delay for over three years, for which no sufficient cause has been made out. 11. Counsel for the Respondent rightly points out that the Review Petition has been filed without prayer for condonation of delay though the Petition has been presented after 30 days from the date of order under review. In support, Counsel for the Respondent relies on the decision in the case of Nivruti G.Ahire v. State of Maharashtra & Ors. Nivruti G.Ahire v. State of Maharashtra & Ors. Nivruti G.Ahire v. State of Maharashtra & Ors. reported in 2007 (5) Mh.L.J. 284 reported in 2007 (5) Mh.L.J. 284 reported in 2007 (5) Mh.L.J. 284, however, for the reasons already recorded, this Petition is being dismissed. : 9 : 12. Hence, Review Petition is dismissed with cost quantified at Rs.5,000/- (Rupees Five Thousand) to be paid to the Respondent within two weeks from today. A.M.KHANWILKAR, J.