1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 425 OF 2009 Lilabai W/o.Mohandas Vaishnav PETITIONER VERSUS Charandas S/o.Shankardas Vaishnav RESPONDENT Mr.D.Y.Nandedkar, advocate for petitioner. Mr.N.K.Kakade, advocate for respondent. (CORAM : A.V.POTDAR, J.) DATE : 18/06/2009 PER COURT : 1. By the present writ petition, the petitioner/original defendant in the Trial Court and in Appeal No.164/2006, has challenged the order passed by Ad-hoc District Judge-3 Nanded vide his order dated 13.11.2005, by which the application for condonation of delay was dismissed. 2. Before considering the submissions across the bar, it is necessary to consider the facts which gave rise to file the present writ petition. Respondents have filed R.C.S.No.310/2003 in the Court of Civil Judge, J.D. Nanded for recovery of possession for bonafide requirements u/s.16(1)(G) of The Maharashtra Rent Control Act. In the said suit, the petitioner herein appeared through her advocate 2 and filed her written statement to contest the suit. After framing of issues, when the suit came up for final hearing, the petitioner did not participated in the said suit, and the suit came to be decreed on 19/11/2005. After the petitioner came to know about the judgment and decree passed in the said suit, she moved the District Court by filing Regular Civil Appeal challenging the said decree alongwith the application for condonation of delay bearing no.154/2006. This application was withdrawn without seeking permission to file fresh application for condonation of delay. Thereafter, it appears that again fresh application for condonation of delay u/s.5 of The Limitation Act was filed bearing M.A.R.J.E.No.164/2006 which came to be rejected by the order under challenge. 3. Heard advocate for the petitioner followed by the arguments of advocate for respondents. With the assistance of both of them, perused the record to test whether the order under challenge is perverse, malafide and without application of mind. During the course of submissions, my attention is drawn towards observations of the Trial Court in para no.23 to 26. It was urged that first there is veracity of facts mentioned in the earlier application about her own illness and in the second application about the illness of her son which was not properly considered by the First Appellate Court, who has rejected the application. Secondly, even though original medical papers were produced on record, they were not properly considered by the trial Court and un-necessary importance is given to the withdrawal of the first application without seeking permission to file 3 the fresh application. 4. In the light of these submissions, I have perused the order under challenge. With great regret at this stage only I have to say that the provisions about the proof of documents are according to advocate for petitioner to be totally by-passed. When the original documents are produced, they were not considered by the First Appellate Court. Here it is noted that the document produced are private documents and not public documents. When any private document is produced on record and it is challenged by the other side under the provisions of the Act, that document required to be proved by examining the concern person who has issued the document or who is author of the document. In para no.26 of the order under challenge, it is observed by the First Appellate Court, whose order is under challenge that to prove these documents, the best evidence is to examine the doctor, but the doctor is not examined and without examining the author of the document, learned advocate appearing for petitioner insisting to read this document, which can not be permitted 5. The application for condonation of delay is to be considered in cases if the application is filed on the ground that concern person or relative of concern person is undergoing the medical treatment, then such application to be considered with great sympathy. In this particular case, different versions are coming on record. In one breathe, petitioner applicant is saying that she is under treatment, 4 while in another breathe she is saying that her son is under treatment, but neither her own treatment stands proved nor the treatment of her son. It appears that in the application, the petitioner want to blame her advocate, as according to her, for the fault of her advocate, she has to suffer and loose the suit as it was not properly defended. 6. In the catena of judgment, this Court as well as Hon’ble Apex Court has taken a view that if for the fault of advocate or counsel, the party suffer, then in such cases the Courts ought to take care that for the fault of advocate, litigant must not suffer and in these circumstances, if any adverse order is passed against the litigant, then such orders to be quashed and set aside. In the observation of the Lower Court in para no.24, it is alleged that the earlier application No.54/2006 was withdrawn by her advocate in her absence and as such for the withdrawal of that application permission to file the fresh application is not taken is not within her control but this situation was also considered in para no.24 of the judgment under challenge wherein it is observed by the Court that on 01/11/2006, the pursis was filed by the petitioner. If the pursis was filed by the petitioner for the withdrawal of the earlier application, then now she is estopped from saying that behind her back, her advocate has withdrawn the application of which she has no knowledge. The reliefs claimed are the reliefs governed under the Law of Equity. Law of Equity is for lawyers and not for liers. If to cover the own fault, any litigant want to blame the Officer of the 5 Court, as all the Advocates are Officer of the Court and by putting the gun on the shoulder of the Officer of the Court they want to protect their interest, then such falsity is not to be entertained by the Court of Law. 7. In this light, I have to consider the ruling which are cited across the bar on behalf of learned advocate appearing for the petitioner. Initially reliance is placed on the well-known ruling, reported in 1987 Supreme Court 1353, in the matter of Collector, Land Acquisition, Anantnag and another versus Mst.Katiji and others. In para no.3 of the said judgment, 5 guidelines are given while considering the application for condonation of delay. In the recent judgment delivered by the Division Bench of our own High Court comprising Chief Justice Swatanter Kumar in the judgment reported in 2008(6) Mh.L.J. 239, in the matter of State of Maharashtra and others versus Vithu Kalya Govari and others. This judgment is also considered and it is observed by the Division Bench that the explanation is not only to explain the delay, but it is to satisfaction of the Court that there are sufficient reasons disclosed and explained in the application for condonation of delay and in absence of it, the explanation of petitioner is not be accepted. In the premise, the ratio laid down in the ruling cited supra is not applicable to the present case. Further reliance is placed on the ruling (1998) 7 Supreme Court Cases 123, in the matter of N.Balakrishnan Versus M.Krishnamurthu. The Division Bench 6 judgment of the Apex Court wherein in para no.9,12 and 13 it is observed that while dealing with the application for condonation of delay, the liberal view to be taken. As I have already observed that all these matters are governed under the Law of Equity and Law of Equity is for lawyers and not for the persons who are taking different stands at the different stages, and in such cases the Court have not to take the liberal view. I might have understand the difficulty of the petitioner, but if the petitioner for her own acts is blaming the Officer of the Court by making the allegations that her advocate has withdrawn the earlier application filed for the condonation of delay behind her back, when it clearly discloses or shows that the application was allowed to be withdrawn on her own pursis, then all these facts on which the present writ petition is based is by suppressing the material facts and if the writ petition is filed by suppressing the material facts, then it is not to be entertained. The writ petition is without any merit hence stands dismissed in limine with no order as to costs. (A.V.POTDAR, J.) khs/wp425-09