1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.10957 OF 2009 IN WRIT PETITION NO.6352 OF 2009 Ravindrakumar Champalal Khinvasara, R/o- N-3, CIDCO, Aurangabad. ...APPLICANT. VERSUS 1) Kausabai d/o Sampat Nade, R/o-Narala, Tq-Sillod, District-Aurangabad, 2) Tulsabai w/o Sabu Gavali, R/o-Navgaon, Tq-Paithan, District-Aurangabad, 3) Anusayabai w/o Madhu Thakar, R/o-Narala, Tq-Sillod, District-Aurangabad, 4) Smt. Vatchalabai w/o Shamrao Ghorpade, R/o-Bharadkheda, Tq-Badnapur, District-Jalna, No.1 and 2 are represented through Their General Power of Attorney Shri Gangadhar Raghunath Dhivar, R/o-Ramannagar, Kranti Chowk, Aurangabad, 5) Yogesh Vitthalbhai Zaveri, R/o-V.B. Jewellers, Sarapha, Aurangabad, 2 6) Ramdas Sampat Nade, R/o-Mahalpimpri, At Present R/o-HUDCO, Aurangabad, 7) The State of Maharashtra. ...RESPONDENTS. ... Mr.P.B. Shirsath Advocate for Applicant. Mr.S.B. Talekar Advocate for Respondent Nos.1 to 4. Mr.D.R. Kale, A.G.P. for Respondent No.7. ... CORAM: K.K. TATED, J. DATE : 15TH OCTOBER, 2009. PER COURT : 1. Heard learned counsel for the Applicant, learned counsel for Respondent Nos. 1 to 4 and learned A.G.P. for Respondent No.7. Present Civil Application preferred by original Respondent No.1 in Writ Petition No.6352 of 2009 for vacating the interim order passed by this Court in Writ Petition No.6352 of 2009 on 24th September, 2009. 2. Learned counsel for the Applicant states that 3 the interim order passed by this Court in respect of land bearing Survey No.61/2 and 65/1 situated at village Garkheda, Taluka and District-Aurangabad of which father of the Applicant is owner. Learned counsel for the Applicant submitted that Applicant is not owner of both these Survey Numbers i.e. 61/2 and 65/1. Learned counsel for the Applicant further submitted that these facts are not disclosed by present Respondent Nos. 1 to 4 - original Petitioners at the time of obtaining interim order dated 24th September, 2009. In Para 5 of the present Civil Application, the Applicant has stated that: "The Applicant states that he in fact not the owner of property Survey No.61/2 and 65/1 situated at village Garkheda, Tal. & District: Aurangabad but his father is the owner of property Survey No.61/2 to the extent of 3 Acres 20 R and 2 Acres 15 R. Though, the Petitioners have added the present Applicant as Respondent No.1 in all proceedings including present writ petition." 4 3. Learned counsel for the Applicant further stated that before both the lower authorities, there was no injunction granted in favour of present Petitioners and for the first time, same is granted in favour of Petitioners by this Court by order dated 24th September, 2009. Learned counsel for the Applicant further submitted that in the present Writ Petition No.6352 of 2009 the main prayer is to set aside the order dated 25th June, 2009 passed by Member, M.R.T. Aurangabad below application for condonation of delay in File No.20/A/09/A by which the Petitioners' application for condonation of delay in filing the Appeal against the decision dated 12th July, 2005 rendered by the learned Deputy Collector (L.R.) Aurangabad in Case No.2004/LR/TNC/A/11 was dismissed without any order as to costs. Learned counsel for the Applicant submitted that as there was no injunction order in favour of present Respondent Nos. 1 to 4 - original Petitioners before the lower authorities, Respondent Nos. 1 to 4 - original Petitioners could not ask the same for the first 5 time in this Court. 4. On the other hand, learned counsel for Respondent Nos. 1 to 4 - original Petitioners submits that Member, M.R.T., Aurangabad failed to consider their application for condonation of delay and passed impugned order dated 25th June, 2009. He further submitted that because of negligence on the part of their General Power of Attorney Holder, the impugned order came to be passed. He further submitted that neither the General Power of Attorney Holder nor their Advocate before the lower authority, informed immediately the order passed by the Deputy Collector to Respondent Nos. 1 to 4 and therefore there was delay on their part to prefer Appeal before M.R.T., Aurangabad. Learned counsel for Respondent Nos. 1 to 4 fairly admitted that there was no injunction granted by both the authorities below during the pendency of the proceedings. He further submitted that there was no occasion for seeking injunction restraining original Respondent No.1 from creating any third party right, 6 title or interest in respect of the suit property. On the basis of these submissions, learned counsel for Respondent Nos. 1 to 4 submitted that present Civil Application is liable to be dismissed. He further submitted that Respondent Nos. 1 to 4 have no objection if the Petition is fixed for final hearing as early as possible. He further submitted that if the stay is vacated, the entire Writ Petition will become infructuous. 5. It is admitted fact that this Court passed order dated 24th September, 2009 after hearing the learned counsel for the Petitioner and learned A.G.P. who appeared for original Respondent No.4. As the Applicant in the present Civil Application specifically made a statement that he is not owner in respect of the suit property i.e. Survey No.61/2 and 65/1, I do not find any reason why the Civil Application should not be allowed in terms of prayer clause (b). Not only that, when the matter was pending before both the lower authorities, there was no injunction granted against the present Applicant 7 and for the first time the same is granted by this Court by order dated 24th September, 2009. Considering these facts, Civil Application is allowed in terms of prayer clause (b), which reads as under: "(b) By an appropriate order the interim relief granted in terms of prayer clause "B" in Writ Petition No.6352/2009 by this Hon'ble Court on 24.09.2009 may kindly be vacated or modified to the extent of the present Applicant and for that purpose necessary writ, order or direction may kindly be issued." 6. As in the Writ Petition No.6352 of 2009 the impugned order is dated 25th June, 2009 passed by M.R.T., Aurangabad rejecting present Respondent Nos. 1 to 4 application for condonation of delay in filing appeal against the decision dated 12th July, 2005 passed by learned Deputy Collector (L.R.), Aurangabad, the hearing of Writ Petition is expedited. Office is directed to place the Writ Petition for final hearing in the first week of 8 February, 2010, after completion of service on all the Respondents. 7. Learned counsel for Respondent Nos. 1 to 4 seeks status-quo as on today for two weeks from today. Considering the facts and circumstances of the present case, same request is rejected. [K.K. TATED, J.] asb/OCT09/ca10957.09