wp8197-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8197 OF 2010 Puneet Baldota .. Petitioner Versus Vinod Champaklal Lalwani & Ors. .. Respondents Mr.J.S.Kini i/b. Deepak Thakre for petitioner Mr.Niranjan Pandit with Vikram Shinde i/b M/s.Vigil Juris for respondent Nos. 1 to 4 Ms.Vishaki Bhatia i/b. M/s.S.R.Rawell & Co. for respondent Nos. 5 to 7 Mr.S.D.Rayrikar, AGP for respondent Nos. 8 and 9. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th July 2011. P.C.: 1] Rule. Respondents waive service. By consent taken up for hearing and final disposal. Heard parties. 2] This petition under Article 227 of Constitution of India invokes supervisory jurisdiction of this Court specifically to challenge an order passed on 13th September 2010 by the City Civil Court in Miscellaneous Application No.18 of 2010. wp8197-10.doc 2 3] The contesting respondents having been duly served and they are appearing through Advocates, it is not necessary to effect any service of these proceedings on the other respondents. Respondent Nos. 8 and 9 are represented by AGP. 4] The order that was passed by the City Civil Court is on an application seeking condonation of delay. The petitioner made an application seeking condonation of delay in filing of subject proceedings. That application is numbered as Miscellaneous Application No.18 of 2010. 5] The petitioner stated in the said application that there is an ex parte order made by the Assistant Charity Commissioner, Greater Bombay on 18th July 2009. He states that he got knowledge of the said order only in the first week of January 2010. Thereafter, he applied for copies of the record and proceedings of application No.16 of 2009 which is stated to wp8197-10.doc 3 have been delivered and he filed an appeal to challenge the said order in the City Civil Court which is appellate forum on 29th January 2010. In his submission, there was a delay of 135 days in filing the application. It is stated by him in para 2 of this application for condonation of delay that he was unaware of the ex parte order. The contesting respondent Nos. 1 to 4 did not disclose this order despite that applicant's evidence being recorded in a perjury proceedings taken out by him. He stated that he was concerned about the change reports which were pending before the Assistant Charity Commissioner, Mumbai and was making enquiries for getting the same on board and while making such enquiries he came to know about the order passed by the Assistant Charity Commissioner on 18th January 2009. For all these reasons and taking a liberal view in the larger interest of justice, that, he prayed for condonation of delay. 6] A reply was filed to this application by contesting respondent Nos. 1 to 4 and their stand is that this application is wp8197-10.doc 4 not made bonafide. They pointed out that the charity application is time barred. It was their case that the applicant – petitioner had engaged an Advocate who had by way of an application dated 1st October 2009 sought certified copies of entire record and proceedings of application No.16 of 2009. The certified copies were provided to the said Advocate as is clear from the record, on 3rd October 2009. Therefore, the statement that the delay was occasioned on account of the knowledge of the impugned order in January 2010 is a false statement made on oath and, therefore, the application should be dismissed on this ground alone. This statement is not denied in the rejoinder affidavit, according to the contesting respondent Nos. 1 to 4, but what the petitioner has done is to gloss over the same by stating that he does not remember having engaged an Advocate or having sought copies of the same. He maintained his earlier stand and that is how the application for seeking condonation of delay was argued by parties. The learned Judge of the trial court before whom such an application was placed, framed points and one of the point wp8197-10.doc 5 was whether there is reasonable ground to condone the delay in filing application under section 72 of the Bombay Public Trust Act. When the order is passed on 18th July 2009, the application seeking condonation of delay should have been filed on 16th September 2009 but in fact the same was lodged on 8th March 2010. Thus, there is delay of 172 days. The petitioner applicant pointed out that this application was lodged earlier and there was a stamp number assigned to it. It was lodged on 1st February 2010 and, therefore, the delay cannot be counted after the said date of lodging. The period of delay after the date of lodging cannot be taken into consideration. The learned Judge faults him by saying that when the charity application was presented, it was not accompanied by the delay condonation application and it was filed after 34 days. Therefore, something like order 41 Rule 3A of CPC was pressed into service by the learned Judge without observing as to how this provision applies and whether the proceedings partakes the character of appeal. Be that as it may, from para 11 of his order which is impugned, it is strange that the learned wp8197-10.doc 6 Judge while considering the request of the petitioner applicant to condone the delay, observes that the order that is challenged in charity application is not an ex parte order. How that order cannot be said to be ex parte, occupies most part of the discussion and reasoning in the impugned order. With all his ability and persuasive command Mr. Pandit could not point out anything in law which would justify the discussion and reasoning of this nature when one is considering the application for condonation of delay. It is not the business of the Court to find out whether the order under challenge is ex party order or not. Paras 11 and 12 of the order read thus:- “11. Leaving apart this controversy about counting of days, if one enters into merits, the applicant claimed that it is an ex parte order. However, in my candid opinion, the order could not be labelled as ex parte order, because ex parte order is always passed against party to the proceeding. Admittedly, this applicant was not party to the application made under section 50-A before the Assistant Charity Commissioner and, therefore, there is no question of passing of any ex parte order against him. Whether order has been passed by following due process of law or not, has to be seen by the Court and for that ample evidence has been adduced on record to show that the public notice of wp8197-10.doc 7 enquiry has been published in daily “Punya Nagari” dated 13.5.2009 and the said notice has been published on the notice board of office of Charity Commissioner as well as the notice board of the Trust, which is the procedure contemplated in law.” “12. It is objected that the new paper “Punya Nagari” is not widely circulated and it could not have come to the notice of the applicant. But it is the subjective satisfaction of the authority, which passed the order as to whether the notice has been duly published or not and this Court can not interfere in that subjective satisfaction to say that the publication in the particular news paper is incorrect. The grounds on which the applicant claims for condonation is that he had no knowledge of the impugned order till the first week of January 2010 and thereafter, he has applied for the copies of record and proceedings of application No.16/2009 and then filed his Charity Application. This particular statement on oath of the applicant has been vehemently contested by the respondents. Admittedly, the parties, especially the applicant and respondent Nos. 1 to 4 have locked horns since long regarding the trust in respect of which the present application has been filed. Admittedly, the change reports have been filed before the Charity Commissioner in respect of the Trust by the applicant and the same came to be dismissed for non-prosecution.” 7] In para 13 what has been observed by the learned Judge is that it is an admitted position that one Advocate Amol Inamdar was representing petitioner applicant in these wp8197-10.doc 8 proceedings. Then there is reference to an application made by the said Advocate for photocopies of some certified copies and the application. A perusal of the said application which is also annexed to this petition indicates that the said Amol Inamdar said nowhere in the application that any order was made in the said proceedings and, therefore, he should be furnished with copies thereof. If at all the said Advocate had obtained copies of the proceedings and records, which included the order dated 18th July 2009, how the application in which the petitioner states that he had no knowledge of the order delivered in January 2010 contains an absolutely false statement is not clear to me at all. The learned Judge in para 13 of the order says that the ground mentioned for condonation of delay is improper and false. Surely, the explanation being false and explanation being improper are two distinct matters. Falsity involves serious consequences while one can take liberal view if incorrect or improper statement is made. Entire para 13 is consumed by the learned Judge in criticising the petitioner applicant because the applicant stated in the wp8197-10.doc 9 application that this Advocate is not acting for him in this matter. Further, he criticises the petitioner applicant by observing that the knowledge of the Advocate can be attributed to the client. Then, it is stated that the contesting respondents have attacked this stand of the petitioner and termed it as an attempt to prevent the truth from coming before the Court. The learned Judge, therefore, insists that the petitioner applicant should have filed an affidavit of the lawyer to clarify the situation. The entire reasoning in para 13 is nothing but some sort of conjectures and surmises on the part of learned Judge. This is not a matter where the petitioner applicant can be said to have approached the Court with false statement. At the most the petitioners could be faulted for having knowledge of the order earlier than January 2010, if at all any reliance can be placed on the certified true copies of the application made by his Advocate. However, having perused that part of the paperbook also carefully, I am unable to subscribe the view of the contesting respondents that the petitioner had knowledge of the scheme framed till January 2010. The petitioner and wp8197-10.doc 10 contesting respondents are before the Assistant Charity Commissioner in number of proceedings styled as change reports. Therefore, it may be that the petitioner applicant is speaking of certain matters while he has to confine himself to the version with regard to particular change report and the order made thereon on 18th July 2009. Therefore, merely because the petitioner did not bring an affidavit of the lawyer that the application seeking condonation of delay could not have been dismissed. The learned Judge would have allowed that application by applying liberal principles enshrined in several decisions of the Supreme Court and by compensating the contesting respondents with a direction to pay costs to them. It is well settled that even the application for condonation of delay has to be decided by applying liberal principles but care has to be taken that the party cannot come to court with false plea. In this case, the learned Judge in the entire reasoning does not hold that the petitioner applicant has come with a false case. At one stage he desires to accept the plea and therefore, shows inclination to accept the explanation wp8197-10.doc 11 given by the petitioner but goes to adopt hyper technical course to reject the same. In these circumstances, it can be safely said that the learned Judge failed to apply the liberal principles but adopted hyper technical approach which surely was not warranted. Even the latest decision of the Supreme Court does not discard this view.All that it says is that conduct of the party is relevant factor. The explanation should be satisfactory and reasonable. A false explanation cannot be said to be reasonable and that is how the latest judgement of the Supreme Court reads on this point. 8] In these circumstances, I am of the view that the learned Judge would have been well advised in taking up the main matter for disposal by condoning the delay when it was opposed by respondent Nos. 1 to 4. The affidavit was filed by Vinod Lalwani, respondent No.1, seeking to represent these respondents. Respondent Nos. 5 to 7 resisted that application also on the ground that the order passed on 18th July 2009 is not an ex parte order. Therefore, good part of the impugned wp8197-10.doc 12 order is occupied by the reasoning of the learned Judge as to how order cannot be termed as ex parte order. This unnecessary and futile exercise should have been avoided in the present facts and circumstances of the case. The matter is not such as would lead to ultimate conclusion of rejection of the application for condonation of delay. For all these reasons the impugned order cannot be sustained. It is accordingly quashed and set aside. 9] Reliance placed on the judgement of the Supreme Court in 1993 (1) SCC 572 (Binod Bihari Singh Vs. Union of India) is misplaced. There, the Supreme Court found as a matter of fact that the appellant in that case took a false stand on the question of receipt of signed copies of the Award to get rid of bar of limitation. There receipt of signed copies of the award was not in dispute. In the present case, reliance is placed only on the application made by the Advocate, to draw a conclusion that the petitioner was aware of the order dated 18th July 2009 atleast in October 2010. Therefore, the reliance wp8197-10.doc 13 on this judgement is misplaced as it is distinguishable on facts. 10] In the result, while allowing the petition and setting aside the order it is directed that the petitioner – applicant shall pay cost quantified at Rs.10,000/- to respondent Nos. 1 to 4 within two weeks from today and on proof of such costs being paid, the learned Judge to take up miscellaneous application and decide it in accordance with law, uninfluenced by any observations in the earlier orders as also the order impugned. Petition is allowed. Rule is made absolute accordingly. (S.C.DHARMADHIKARI, J)