1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8382/2011 ABDUL GANI ABDUL REHEMAN age 56 years, Occ. business and agriculture, R/o Roza Bagh, N-12, Cidco, Aurangabad. Petitioner orig. R-1. VERSUS 1- THE MANAGING COMMITTEE JAMA MASJID ROZA BAUGH ABAD THR SECRETARY Mohammed Abdul Rashid s/o Ahmed Ali age 68 yrs, Occ. Pensioner, R/o Plot No.52, N-12, Roza Bagh, Aurangabad. 2- The Municipal Corporation, Through Commissioner, Municipal Corporation, Aurangabad. 3- City and Industrial Development, Corporation CIDCO, New Aurangabad, Through it’s Administrator. Respondents. ... Advocate for Petitioner : Mr. Adwant S.v. Mr. P G Godhamgaonkar For R/1 2 And 3 Served ... CORAM : S V GANGAPURWALA, J. Dated: November 21, 2011 2 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith. With the consent of parties, taken up for final hearing. 2. Heard Shri Adwant learned counsel for the petitioner and Shri Godhamgaonkar learned counsel for respondent No.1. Respondent nos. 2 and 3 though served are absent. 3. The petitioner assails the order dated 18.10.2011 passed by learned Adhoc Additional District Judge-3, Aurangabad in M.A.R.J.I. No.405/2011 and order dated 20.10.2011 passed below Exh.5 in RCA No.315/2011. 4. Shri Adwant learned counsel for the petitioner submits that the present respondent No.1 had filed appeal alongwith an application for leave to file appeal and condonation of delay against the judgment and decree passed by the Trial Court in R.C.S. No.242/2010. The In-charge District Judge passed following order on the presentation of appeal :- “Perused the submissions of Supdt. (Judl) and order passed by the Honourable High Court in Writ Petition No.7510/2011. Honourable High Court has observed that appeal with leave of the Appellate Court can be filed by the appellant, if he proves that he is interested person. But now in filing appeal there is delay. Hence, it has to be decided first and then it is to be decided whether leave to appeal 3 should be granted or not. Hence, delay condonation application be registered first. It is allowed then application for leave to appeal will be considered.” 5. It is submitted by learned counsel for the petitioner that, there after on M.A.R.J.I.No.405/2011, the learned Additional District Judge,-3 passed following order :- “This application was not necessary, as leave to appeal is granted on 17.10.2011. Therefore, as of right the appellant can file appeal within 30 days from the order. Hence, appeal be checked and numbered as per procedure.” According to the learned counsel, said order passed in MARJI No. 405/2011 is perverse, and against the earlier order dated 17.10.2011 and, same cannot be sustained and order passed below Exh.5 was also illegal and without jurisdiction, cannot be sustained. 6. Shri Godhamgaonkar, learned counsel for respondent no.1, submits that to grant leave is the discreation of the Court and vide order dated 18.10.2011, the Court has granted leave. It is only a technical matter and if party shows that he has interest and 4 is aggrieved by the order can file appeal, though he was not party to the suit. Learned counsel further contends that order passed below Exh.5 dated 20.10.2011, is already set aside by District Court and as such writ petition becomes infructuous. Learned counsel further contends that respondent No.1 can ignore decree being a nullity and without jurisdiction. Learned counsel relies on the judgment of Apex Court in the Case of Kiran Singh and others Vs. Chaman Paswan and ors reported in A.I.R. 1954 S.C. 340 . Learned counsel contends that, in equity, petitioner needs to be restrained from carrying out further construction. 7. With the assistance of learned counsel, I have gone through the record. Perusal of order dated 18.10.2011 passed in MARJI 405/2011, it is manifest that same is not in consonance with the order dated 17.10.2011, passed by the in Charge District Judge, and on presentation of the appeal. It no where transpires that, District Judge, at any point of time passed any order granting leave to the present respondent No.1 to file appeal. On the contrary, District Court observed that first the application for condonation of delay be registered and thereafter consider the 5 application for leave to file appeal. In view of that, observation of the learned District Judge-3 on 18.10.2011, in MARJI 405/2011, is against the record and certainly cannot be sustained. Order dated 20.10.2011 passed by the District Judge-2, Aurangabad is already set aside as contended by learned counsel for respondent. 8. In view of above, Rule is made absolute in above terms. District Judge before whom the matter is pending shall decide the application for leave to file appeal and application for condonation of delay simultaneously after hearing the parties. It is submitted that matter is kept today itself before the District Court. Parties may appear today before the District Court and District Court shall decide said application for condonation of delay and application for leave to file appeal after hearing the respective parties, within a period of 15 days. 9. Rule is accordingly made absolute in above terms, however with no order as to costs. All points are kept open. ( S V GANGAPURWALA, J. ) aaa/8382- ... 6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8382/2011 DATE OF DECISION : 21-11-2011 FOR APPROVAL AND SIGNATURE : THE HON’BLE SHRI JUSTICE S.V.GANGAPURWALA : 1. Whether Reporters of Local Papers may be permitted to see the judgment ? ...Yes.. 2. To be referred to the Reporter or not ? ..Yes/No.. 3. Whether His Lordship wishes to see the fair copy of the judgment ? ..No.. 4. Whether this case involves a substantial question of law as to interpretation of the Constitution of India, 1950 or any order made thereunder ? ..No.. 5. Whether it is to be circulated to the Civil Judges ? ..No.. 6. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur, Bombay and Goa offices ? ..No.. ( Mrs. Anuja A. Ankush ) P. A. to the Hon’ble Judge ....