1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.203 OF 2011 IN APPEAL FROM ORDER NO.1183 OF 1993 IN S.C.SUIT NO.2401 OF 1974 Shri Moreshwar Janu Vaity ...Applicant. v/s Shri Suresh Pragjibhai & Anr. ...Respondents. Mr. S.M.Suryawanshi ,adv. For the Applicant. Ms Sunita M. Poddar, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : AUGUST 9, 2011. P.C. 1 This application is filed for condonation of delay and for recalling the order dated 4.5.2000 whereby the Appeal From Order No. 1183 of 1993 was dismissed in default due to non-compliance of the conditional order. There is delay of 10 years and 192 days, which is sought to be condoned. 2 To appreciate the facts and see the bonafides of the applicant as well as reasons for the delay, it will be necessary to state a few facts. 3 Respondent nos.1 and 2 are the original plaintiffs. They have filed Short Cause Suit No.2401 of 1974. It was for possession for mesne profits in respect of Mezzanine floor of a room. Defendant no.3 2 Moreshwar Vaity was claimed to be in actual possession of the said mezzanine floor. Suit was decreed on 4.9.1991. Appellant/defendant no.3 contended that it was a exparte decree and, therefore, it should be set aside and for this purpose he took out notice of motion, which was rejected on 30.8.1993. Against rejection of notice of motion, he filed Appeal From Order No.1183 of 1993. For about 7 years, he did not take steps for removal of office objections and, therefore, appeal could not proceed further. Finally on 4.5.2000 conditional order was passed directing to remove the office objections within specified period failing which the appeal would stand dismissed. He did not comply with the order and did not remove the office objections. Therefore, as a consequence of that conditional order, appeal was dismissed. The present application is filed for restoration of the appeal by condoning delay of 10 years 192 days. According to him, his father Moreshwar, who was original defendant no.3 and the appellant was not keeping good health and was required to be frequently treated as indoor patient in the hospital. He died on 19.6.2004. As he himself was looking after all the litigations, his son was not aware of the same. In December, 2010 when the bailiff went to the spot for execution of the decree and to hand over possession, applicant came to know about the dismissal of the appeal and 3 then he filed this application on 6th January, 2011. According to him, original decree being ex-parte, his father did not get the opportunity to contest suit properly and due to his health problems , he could not remove office objections resulting in dismissal of the appeal. As he himself was not aware about the litigation, delay was caused. Application is opposed by the respondents by filing affidavit-in-reply of the respondent no.2 Harish. He had pointed out that the deceased Moreshwar was very much contesting all the litigations not only before the trial Court, but before this Court and also before the Supreme Court also. His sons were aware about the said litigations. Not only this suit but there were two suits in which the decrees were passed. Record of those matters also goes to show that original defendant no.3 Moreshwar and his sons were much involved in contesting the matters and it is contended that this application is filed malafide with sole intention to delay the execution of the decree. According to the respondent nos.1 and 2 for the last 37 years, they are not succeeded in getting possession of the premises because of one or the other reasons, which could be attributed only to the defendant no.3 and his family. Therefore, it is prayed that the application for condonation of delay as well as for restoration of the appeal be rejected. 4 On perusal of the record, it appears that the original defendant no.3 Moreshwar was in occupation of three different properties, one was room about which suit no.1384 of 1997 was filed. Another was mezzanine floor about which present suit was filed and third was open piece of land adjoining this room. About that suit no.8472 of 1976 was filed. All these suits were being contested by Moreshwar. The learned counsel for the applicant invited my attention to certain certificates from the hospital. One certificate is dated 10th December, 2010 from Hinduja National Hospital and Research Centre which shows that Moreshwar Vaity was suffering from IHD, severe LV dysfunction, severe diabetes and parkinsonism and was taking treatment from 1998-2004. Naturally from this certificate, it is impossible to know when he was actually bedridden and was unable to look after his day-to-day activities and litigations. There is one more indoor bill showing that he was admitted in the hospital on 10th March, 1993 and was discharged on 19.3.1993. Another discharge card from the Hinduja Hospital shows that on 27.2.1995 he was admitted in hospital and was discharged on 20.3.1995. During that period, he had undergone treatment for IHD Post 5 Infarct Angina with LV dysfunction. Another discharge card dated 28.1.98 shows that he was admitted on 28.1.1998 and on the same day, he was discharged. A bill dated 16.10.98 from Hinduja Hospital shows that he was admitted in Hospital on 12.10.98 and was discharged on 16.10.98. This being only a bill of fees, it does not disclose that for what ailment , he was admitted in the hospital. From this complete record, it appears that he was indoor patient in 1993 for about nine days. In October, 1998, he was indoor patient for five days. On 28.1.98 he was only brought in the hospital and discharged on the same day. He was indoor patient for during 1995 from 27.2.1995 to 20.3.1995. It shows that during this period of about 5 years on 3 occasions, he was required to be admitted in hospitals for short period. Bill dated 29.9.2000 shows that he was admitted in the Hinduja Hospital on 21.9.2000 and was discharged on 29.9.2000. Again he was admitted in hospital on 23.10.2001 and was discharged on 25.10.2001. He was admitted in the hospital on 23.6.2003 and discharged on 9.7.2003. He was admitted in the hospital on 20.4.2004 and discharged on 12.6.2004. It appears that a few days after that he 6 died. In view of this record, it can be stated that from 1993 to 2004 intermittently he was required to be admitted in hospital for treatment. However, we have to see whether during the periods when he was admitted in the hospital was he in a position to look after the litigations and whether he was actually looking after the same or not. In 1993 he had taken out notice of motion no.3079 of 1993 for setting aside exparte decree. That was dismissed on 30.8.1993 and immediately he filed Appeal From Order No.1183 of 1993 on 2nd September, 1990. He had engaged an advocate. Record reveals that for about 8 years, he did not remove the office objections in the said appeal and, therefore, finally it was dismissed due to non-compliance of the office objections on 4.5.2000. Bailiff's report dated 8.7.93 shows that when the bailiff went to execute the decree in this suit, defendant no.3 Moreshwar was present and was having the keys of the suit premises but he refused to hand over possession and, therefore, decree could not be executed and he requested for time of one week to vacate the premises. It appears that after this he took out notice of motion for setting aside decree. Record reveals that in a suit no.1384 of 1977, the said defendant Moreshwar had filed writ petition no.896 of 2002 to set aside and quash the judgment and decree in suit no.1384 of 1977 rendered on 7 on 3rd March, 1997 and the judgment of the appellate bench dated 5th November, 2001. That writ petition was dismissed on 26th June, 2002. It appears that against the judgment of the High Court in the said writ petition, he filed Special Leave Petition (Civil) No. 115493 of 2002. That Special Leave Petition was also dismissed on 20.1.2003. On 29th December, 2003 his advocate, Mr. M.U.Pande addressed letter to the plaintiffs that in compliance of the order dated 20.1.2003 passed by the Supreme Court and the undertaking filed by Moreshwar Vaity, his son Vijay would be handing over possession of the suit premises to the plaintiffs on 31.12.2003 and the plaintiffs were requested to remain present to take possession of the said premises. History of the litigation arising out of suit no.1384 of 1977 indicates that Moreshwar was actively looking after the litigations not only before the trial Court, Appellate Court but also before the High Court and the Supreme Court. Not only this the above referred letter dated 29th December, 2003 from Mr. Pande, advocate shows that even sons of Moreshwar Vaity were well aware about the litigations. Copy of the proceeding sheets in suit no.8472 of 1976 in respect of open plot adjoining the suit premises of the present case reveals that on 6.11.2001 after the arguments of the advocate for the 8 plaintiffs were heard, son of the defendant appeared and he was informed that the matter was being adjourned to 9.11.2001. On 9.11.2001 in spite of that information defendant and his advocate remain absent and finally that suit was also decreed on 4th December, 2001. Proceeding sheet dated 6.11.2001 shows that his son was attending the matters as and when the defendant himself did not appear and, therefore, they were fully conversant about the litigation. In view of the facts and circumstances, even though defendant Moreshwar Vaity was required to be admitted in the hospital on certain occasions during the period of about 12 years from 1993 to 2004, he was not completely bedridden during that period and he was also actively looking after the litigations. Not only this, his sons were fully conversant about same. In spite of this, for about 7 years, office objections were not removed in the appeal from order no.1183 of 1993 and finally that was required to be dismissed in default. Moreshwar died about four years after the dismissal of that appeal and during that period, he was actively contesting other litigations arising out of the other two suits by filing appeals, writ petitions and special leave petitions but still he did not bother to file any application for restoration of the Appeal From Order No.1183 of 1993. The present application is filed on 6th 9 January, 2011, i.e., about 6 and half years after the death of Moreshwar Vaity. Taking into consideration the above history of litigations and the involvement of the sons of the deceased not only in attending the Courts but also in execution of the decree of another suit, it can not be believed that applicant was not aware about the litigations and that for the first time in December, 2010, he came to know about the decree in the present matter when the bailiff went to execute the decree. Suit in the present case was filed in 1974 and till this day in August, 2011, plaintiffs are yet to get the fruits of the decree passed in that suit. Defendants have succeeded in averting execution of the decree for such a long time. In fact, it is a sad story of dispensation of justice on civil side. It will be mockery of justice if a delay of more than 10 years is condoned and the appeal was dismissed for non-removal of office objections for more than 7 years is restored to the file and then giving long rope to the applicant to go back to his prayer for setting aside exparte decree passed in 1993. I do not see any valid and satisfactory reason to condone the delay and to restore the said appeal from order. 10 Therefore, application stands dismissed with cost of Rs. 10,000/- to be paid by the applicant to the respondent nos. 1 and 2. Cost be paid within two weeks. (J.H. BHATIA,J.)