1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3765 OF 2009 IN FIRST APPEAL NO.393 OF 1995 WITH CIVIL APPLICATION NO.3763 OF 2009 IN FIRST APPEAL NO.394 OF 1995 WITH CIVIL APPLICATION NO.3764 OF 2009 IN FIRST APPEAL NO.394 OF 1995 WITH CIVIL APPLICATION NO.3766 OF 2009 IN FIRST APPEAL NO.393 OF 1995 Palakdhari Bahal Maurya & Ors. )..Applicants V/s. Bechan Behal Maruya & Anr. )..Respondents AND CIVIL APPLICATION NO.2452 OF 2009 IN FIRST APPEAL NO.393 OF 1995 WITH CIVIL APPLICATION NO.2453 OF 2009 IN FIRST APPEAL NO.394 OF 1995 WITH CIVIL APPLICATION NO.4069 OF 2009 IN FIRST APPEAL NO.393 OF 1995 WITH CIVIL APPLICATION NO.4070 OF 2009 IN FIRST APPEAL NO.394 OF 1995 Bechan Muhal Mourya )..Applicant Vs Shri Palakhari Bahal Mourya )..Respondents 2 Shri B.R.Zaveri i/by R.S.Yadav for the applicants. Mr.R.K.Singh for the respondent no.2. Mr.K.K.Pandey for the respondent no.1. ---- Coram : R.S.MOHITE,J Date : 14th January, 2010 PC CIVIL APPLICATION NO.3765/2009 IN FIRST APPEAL NO.393/1995 AND CIVIL APPLICATION NO.3763 OF 2009 IN FIRST APPEAL NO.394/1995 1 These are applications for condonation of 123 days delay in taking out Civil Applications for setting aside the order dated 20.3.2009. It is the contention of the applicants that the act of obtaining the order dated 20.3.2009 which recorded the settlement between the parties and permitted the withdrawal of the main appeal, was an action taken at the behest of respondent no.2 without the consent of respondent nos.1, 3 & 4. In so far as delay is concerned, it is caused because of the death of the son of Mr.R.S.Yadav who was then appearing for the applicants. The son of Advocate Yadav is said to have been expired on 9.7.2009. In these circumstances, though a reply has been filed to this application which merely states that sufficient reason has not been given for explaining each days delay, in my view, in the interest of justice, the delay is required to be condoned 3 specially as very serious allegations are made against the Advocate who appeared on behalf of the respondents on the date when appeal was withdrawn. Applications are therefore, allowed. CIVIL APPLICATION NO.3766/2009 AND CIVIL APPLICATION NO.3764/2009 1 These are the applications taken out by the original respondent nos.1, 3 & 4 in the main First Appeals for setting aside the order dated 20.3.2009 passed in appeals and which order has the effect of disposing off the appeals. The said order passed by this Court is in the following terms :- “Not on board. Mentioned. 1. The learned counsel for the appellant has placed on record copies of two affidavits titled as affidavit-cum-declaration. The learned Counsel for the respondent has no objection for taking the said documents on record. Hence the same are taken on record and marked as `X’ for identification. 2. The Counsel for the appellant seeks permission to withdraw the appeals in view of the understanding reached between the parties, which is stated to be reflected from the affidavit-cum-declaration which is placed on record. Permission is granted. Appeals are dismissed as withdrawn.” 2 It is seen that one Advocate Mr.R.K.Singh appeared on behalf of the respondents before this Court on that date. Counsel for the appellants sought permission to withdraw the appeals in view of understanding reached between the parties which was stated to be reflected from in an affidavit-cum-declaration which was placed on record. On the assumption that the parties have reached the settlement out of Court, the permission to withdraw the appeals was granted and the appeals were dismissed as withdrawn. It is not in dispute that since the pendency of the suit, a Court Receiver was appointed on the suit 4 property. The appellants were appointed as agents of the Court Receiver subject to payment of certain royalty and at some stage royalty amount has been enhanced and confirmed by the Apex Court. It appears from the affidavit-cum-declaration which was placed on record in the appeals that the respondent no.2 acting under a general power of attorney said to have been executed by respondent nos.1, 3 & 4 on 1.12.1993, stated and declared that he himself on behalf of defendant nos.1, 3 & 4 was giving full right title and interest and surrendering title and interest in respect of the said shop premises in favour of the appellant Bechan Mohal Mourya. The declaration was further to the effect that respondents would never claim any right, title and interest in respect of the shop premises against the appellant in future. The declaration records that this concession was given by respondent no.2 since he has received an amount of Rs.1,00,000/- in cash. In my view, even assuming that there was a power of attorney executed by respondent nos.1, 3 & 4 in favour of respondent no.2, respondent no.2 could never have surrendered the tenancy rights, which admittedly stood in the name of respondent no.1, to any party save and except the landlord. The surrender of tenancy rights by a declaration of the nature that was filed on record in favour of the appellant who happens to be a relative of respondent no.1 can have no sanction of law. This aspect of the matter appears not to have been brought to the notice of the Court when the matter was mentioned by a precipe on 20.3.2009. 3 Ordinarily, I would have sent this matter to the same Judge since a prayer pertains to re-call of the order but I find that there is an order passed on the administrative side assigning the matter to me to hear this matter. In the circumstances, Civil Applications are allowed in terms of prayer clauses-(a). Advocate for the applicants fairly states that he is 5 not pressing prayer clause-(b). CIVIL APPLICATION NO.2452/2009 AND CIVIL APPLICATION NO.2453 OF 2009 1 Advocate for the applicants in the aforesaid Civil Applications states that in view of the separate order passed by me in Civil Application Nos.3766/2009 and 3764/2009, he would not like to press these applications. Applications are therefore, dismissed as withdrawn. CIVIL APPLICATION NO.4069/2009 AND CIVIL APPLICATION NO.4070/2009 1 These Civil Applications are filed on behalf of the respondent no.2 on the strength of the power of attorney said to have been executed in favour of the respondent nos.1, 3 & 4. The prayer in the Civil Applications is for discharge of the earlier Advocate who is appearing for respondent nos.1, 3 & 4. It is now seen that the respondent nos.1,3 & 4 have engaged another Advocate B.R.Zaveri. In the circumstances, Civil Applications become infructuous and the same are dismissed. He would be entitled to appear on behalf of respondent no.2 in First Appeal No.394 of 1995 in which respondent no.2 is a party. (R.S.MOHITE,J) 6 7