1 WP4138/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4138 OF 2011 Pandurang s/o Ganpat Sangle (Deceased) Changdev s/o Pandurang Sangle (Deceased) Through the General Power of Attorney and Legal Heir Rajendra s/o Changdev Sangle, Age 39 years, Occupation Agriculture, Resident of Kanhegaon, Taluka Kopargaon, District Ahmednagar Petitioner V E R S U S 1 Sahebrao s/o Changdev Jagtap, Aged Major, Occupation Agriculture, Resident of Kanhegaon, Taluka Kopargaon, District Ahmednagar Respondents 2 Godavari Sugar Mills Limited, Sakarwadi, Taluka Kopargaon, District Ahmednagar 3 The Manager, Maharashtra State Agricultural Corporation Limited Sakarwadi Post. Wari, Taluka Kopargaon, District Ahmednagar Shri P.M. Shah, Senior Counsel, instructed by Shri A.D. Shinde, Advocate for the petitioner Shri V.D. Hon, Advocate for respondent No.1 CORAM : A.V. NIRGUDE, J. DATED : 12th July, 2011 ORAL JUDGMENT : 1. This writ petition is filed against the order dated 27th April, 2011, refusing to condone delay of 461 days occurred in filing of revision petition before the learned Member of Maharashtra Revenue Tribunal, Aurangabad. 2. The petitioner stated in the application seeking condonation of delay that after the impugned order was passed on 3rd February, 2009, he went to challenge the said order before the Additional Collector. He filed a second RTS Appeal on 31st March, 2009. He said, the Additional Collector even passed order granting him interim relief (so as to protect the possession). This interim relief continued till 8th July 2010. He said, on 8th July, 2010, 2 WP4138/2011 when it was pointed out by respondent No.1 that the RTS appeal was not maintainable, the learned Additional Collector dismissed the appeal. Thereafter, on 2nd August, 2010, the revision was filed. The time spent before the Additional Collector in pursuing the RTS appeal between 31st March, 2009 to 8th July, 2010 was 432 days. 3. It is the case of the petitioner that the decision to go before the Additional Collector by filing RTS appeal, was a bona fide mistake. He said, he was under bona fide impression that such appeal would be maintainable before the Additional Collector. The respondent No.1 took strong exception to this statement saying that the petitioner could not have / had bona fide belief / impression that such appeal before the learned Additional Collector was probably maintainable. He pointed out that in similar situation earlier, the petitioner went straight to the Maharashtra Revenue Tribunal without approaching any other forum. 4. The learned Member of the Maharashtra Revenue Tribunal dismissed the application, because he held that the petitioner was unable to prove that approaching the Additional Collector in RTS appeal was a bona fide mistake. He held, the benefit of section 14 of the Limitation Act, 1963, cannot be given to him. 5. As against this order, this petition is filed. The learned Advocate for respondent No. 1 pointed out that after respondent No.1 succeeded before the Sub-Divisional Officer vide order dated 3rd February, 2009, he moved a caveat before the Maharashtra Revenue Tribunal. A notice of such caveat was sent to the petitioner. He alleged that to avoid opposition at Maharashtra Revenue Tribunal due to caveat of the respondents, the petitioner purposely moved the Additional Collector and obtained an exparte order. 3 WP4138/2011 6. The question therefore is, whether the petitioner’s case, when he said that he had bonafide belief that his remedy lies in the said appeal before the Additional Collector is believable? In my view, the petitioner’s case is believable. 7. The petitioner went before the Additional Collector on 31st March, 2009. Soon thereafter, the Additional Collector passed even an order of interim nature and thereby afforded protection to the petitioner. The respondents also appeared and opposed the appeal on merits. It ultimately came out that filing of this appeal was not correct remedy. 8. The question is, whether the petitioner would purposely seek a wrong remedy ? The answer is in negative. The impugned order dated 3rd February, 2009 would have resulted into dispossession of the petitioner. The petitioner is in possession of the disputed land which is about 1 ½ acre since prior to 1979. The litigation is pending since 1979. It is indeed a long drawn litigation. The parties had an occasion to go before the Maharashtra Revenue Tribunal, probably the highest Court in hierarchy of Tenancy Courts in 1991, and thereafter, they were sent back to the lowermost Court, because the matter was remanded. The litigation continued and apparently the progress was painfully slow. As said above, at first appeal stage, the impugned order of 3rd February, 2009 was passed. The next forum for the petitioner was the Maharashtra Revenue Tribunal, where he ought to have filed revision. At such crucial time a party would not purposely commit a mistake of going to a wrong forum. Indeed, the petitioner has not explained as to why he had bona fide belief that the forum of the Additional Collector’s Court was available to him. He has not mentioned as to on whose advice such a decision was taken. So, it can be said that the petitioner’s case for explaining the delay is rather laconic and insufficiently explained. The 4 WP4138/2011 insufficient explanation given by the petitioner in their application seeking condonation of delay can again be attributed to inarticulate drafting of the application. 9. The learned Advocate appearing for respondent No. 1 placed reliance on the observations in the Judgment of this Court in the case of Foreshore Co-operative Housing Society Ltd. v. Praveen Desai & Ors (2006 (6) Bom. C.R. 230). The learned single Judge of this Court observed that though the plaintiffs sought benefit of section 14 of the Limitation Act to bring his suit within limitation there were no pleadings found in the plaint. Even after reply was filed in the Notice of motion and an objection was raised that the suit is barred by the law of limitation, still no attempt was made to amend the plaint. 10. The Division Bench of this Court in the Judgment of Premlaxmi and Co. Mumbai v. Ingersoll Rand (India) Ltd., Bangalore and another (2011 (1) Mh.L.J. 178) too observed thus“In order to get benefit of section 14 of the Limitation Act, it is required to be proved before the Court that he was prosecuting the remedy in a wrong forum in a bona fide manner.” 11. The learned Advocate appearing for respondent No. 1 placed reliance on the Judgment of Supreme Court in the case of Shankara Cooperative Housing Society Limited v. M. Prabhakar and others (2011) 5 Supreme Court Cases 607). But, I think, law laid down in that Judgment relates to condonation of delay in filing of writ petitions. In this case, section 14 of the Limitation Act would certainly apply, and, as said above, it was for the petitioner to satisfy the learned Member of Maharashtra Revenue Tribunal that the appeal before the Additional Collector was prosecuted in good faith etc. 12. For the reasons recorded above, I am of the view that the petitioner 5 WP4138/2011 should be given benefit of doubt when he said that pursuing the remedy before the Additional Collector was his bona fide mistake. As observed above, the petitioner in the said situation would not have gone before the wrong forum unless he was advised to do so. Such advice invariably would come from his legal adviser, who apparently took him to a wrong forum. I am, therefore, inclined to allow the writ petition and set aside the impugned order. However, this can be done only if the petitioner pays costs of Rs. 10,000/- to respondent No.1. ORDER 1. On the petitioner’s paying a cost of Rs.10,000/- (Rupees Ten Thousand) on or before 26th July, 2011, the petition shall stand allowed, the impugned order shall stand set aside and the delay shall stand condoned. The cost shall be paid either directly to the respondent No.1 or respondent No. 1’s Advocate who appeared before the M.R.T. Aurangabad. 2. If the cost is paid, as directed above, the parties shall appear before the learned Member of the M.R.T. Aurangabad on 27th July, 2011. If the cost is paid earlier to 26th July, 2011, the parties are at liberty to go before the learned Member of the M.R.T. Aurangabad earlier than the stipulated time. 3. The learned Member of M.R.T. Aurangabad is directed to decide the revision expeditiously and as far as possible within three months from 27th July, 2011. 4. The petitioner is at liberty to move an application for interim relief giving notice to the other side. Copy of this order duly authenticated by the Court Sheristedar be supplied to the learned counsel for the parties, at their request. ( A.V. NIRGUDE, J. ) SRM/WP/4138/11/12/7/11ok 6 WP4138/2011