1 4.caw1165.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1165 OF 2011 IN WRIT PETITION NO. 3507 OF 1995 Kakad Housing Corporation. ....Petitioner Vs. Kakad House Co-op. Housing Society Ltd. & ors. ....Respondents and Rukmani Ramchand Malkani. ....Respondent. Mr. N.K. Mudnaney, Advocate for the Applicant. Mr. Shinghrani i/b. Mr. Y.T. John, Advocate for Respondent No. 2. Mr. S.D. Rayrikar, AGP for Respondent Nos. 3 to 5. CORAM:- GIRISH GODBOLE, J DATED:- NOVEMBER 16, 2011 P.C. 1. Rule was already issued on 22/6/2011. An Affidavit in Reply is tendered by Advocate Shinghrani, appearing for the proposed heirs of the deceased Respondent No. 2. Affidavit in rejoinder has been filed by Mr. Mudnaney. 2 4.caw1165.11 2. I have heard Mr. Mudnaney, Advocate for the Petitioner and Mr. Shinghrani, Advocate for Respondent No. 2. It is not in dispute that proceedings under section 23 of the M.C.S. Act, 1960 were decided in favour of the deceased Smt. Kala Chandiramani, that a revision application was filed by the Petitioner which was allowed and that second revision application was filed by Smt. Kala Chandiramani which is allowed by the State Government by the impugned Judgment and Order dated 8/6/1995 which is assailed in the Writ Petition. Initially, this Writ Petition was summarily dismissed by learned Single Judge on 20/9/1995 and even the LPA was dismissed on 12/1/2001. These orders were challenged in SLP (C) No. 4914 of 2001 in which notice was issued initially. Ultimately, by order dated 8/2/2002 leave was granted and Civil Appeal No. 1051 of 2002 arising out of SLP (C) No. 4914 of 2001 was allowed and the Petition was remitted back to the Single Judge. Thereafter, rule has been issued in the Writ Petition and interim relief has been granted in favour of the Petitioner. 3. It is also not in dispute that the Respondent No. 2 died on 19/7/2006 and a notice/intimation as contemplated by Order 22 Rule 10A of the Code of Civil Procedure 1908 had not been given to the Advocate for the 3 4.caw1165.11 Petitioner by the erstwhile Advocate of the deceased Respondent No. 2. However, the Petitioner was otherwise aware of the death of the Respondent No. 2 which can be established from the fact that the Petitioner filed R.A.E. Suit No. 715/1150/2007 for eviction against Rukmani Malkani who is the proposed heir of the deceased Respondent No.2. Paragraph-1 of the plaint clearly shows that the Petitioner was aware about death of Kala Chandiramani in the year 2006 and on that basis the suit was filed against the proposed Respondent No. 2(a). 4. It is further not in dispute that the Advocate appearing for the Petitioner in the Court of Small Causes is not the same as the Advocate appearing in this Court and different Advocates were appearing. It is no doubt true as pointed by Mr. Shinghrani that apart from the fact that the Suit was filed against the proposed Respondent No. 2(a), even evidence was laid in the year 2008 and in the course of evidence factum of death of Respondent No.3 was clearly stated. Respondent No.2 has died on 19/7/2006. 5. The explanation offered by the Petitioner is that the Advocate appearing in the High Court was not informed about the death and when 4 4.caw1165.11 the Suit came up for final hearing, during the course of discussion with their Advocate they noted that Writ Petition was pending and thereafter this Civil Application has been filed expeditiously. 6. In Puran Singh & ors v/s. State of Punjab (1996) 2 SCC page 205, the Supreme Court has held that the provisions of Order 22 do not strictly apply to Petitions under Article 226 and 227 of the Constitution of India. Though in the present case, there is clear material available on record that the Petitioner was aware about the death of the Respondent No. 2 at least in the year 2007, there is nothing to indicate that their Advocate appearing in this Court was informed about the said death. The litigant may not be aware about the complexities of law and it is well settled as held by the Supreme Court in the Judgment of the State of M.P. v/s. S.S. Akolkar, AIR 1996 SC 1984 that the consideration while hearing an application for setting aside an abatement is distinct and different from the consideration from condonation of delay under section 5 of the Limitation Act, 1963 and that the Application for setting aside abatement is considered liberally. It is no doubt true that in the present case delay is not of a short period and there is an enormous delay of almost 4 years and 6 months in filing the Application. However, this is a peculiar case where 5 4.caw1165.11 the Supreme Court has remanded the matter back to this Court and has directed that the controversy needs to be finally decided by this Court on merits. 7. Apart from this, there is one more reason as to why I am inclined to condone the delay. Original decision in proceedings in Section 23 was rendered by the Deputy Registrar of the Cooperative Societies, A ward, Mumbai in Appeal No. 48 of 1989. No further appeal is provided under section 152 of the M.C.S. Act against an order passed under section 23 and hence deceased Kala Chandiramani had filed a Revision Application before the Divisional Joint Registrar, Cooperative Societies, Mumbai under section 154 of the said Act. That Revision Application No. 199 of 1991 was allowed and the Appeal filed by Smt. Kala Chandiramani was dismissed by setting aside the order passed by the Deputy Registrar on 20/9/1991 by the Judgment delivered on 28/7/1994. Against this Order passed in revision, Smt. Kala Chandiramani filed second revision application before the State under section 154 of the Act which has been allowed by the Judgment and Order dated 8/6/1995 which is impugned in this Writ Petition. Recently, the Full Bench of this Court in Smt Shireen Sami Gadiali & Anr v/s. Spenta Coop. Hsg. Society Ltd. & ors. in Writ 6 4.caw1165.11 Petition No. 6403 of 2010 and Writ Petition No. 7293 of 2010 in the case of Shri Vasantrao Madhavrao Deshmane and ors. v/s. The Asst. Registrar, Co.operative Societies, Chandwad and others (D. K. Deshmukh, J, Anoop V. Mohta, J and Ranjit More, J), decided on 21st April, 2011, held that second revision application is not maintainable under the provisions of section 154. Thus, as the said Full Bench Judgment presently stands, the order impugned in the Writ Petition is really an order which suffers from inherent lack of jurisdiction and is therefore a nullity. It is true that the Judgment of the Full Bench does not elaborately consider the Judgment of the Supreme Court in the case of Ishwar Singh v/s. State of Rajasthan & ors. (2005) 2 SCC 334. However the Full Bench Judgment is binding on all courts in the State of Maharashtra. Thus, as the law presently stands the order impugned in the Writ Petition is a nullity in the eyes of law and even on that ground, there is a strong case for condoning the delay in filing the Application. The explanation offered namely that the Petitioner did not inform the factum of death to their Advocate for High Court is a plausible explanation and deserves to be accepted. It is no doubt true that some prejudice will be caused to the proposed Respondent but that can be compensated by awarding substantial cost quantified at Rs. 20000/- to be paid to the 7 4.caw1165.11 proposed Respondent within a period of 4 weeks from today. Payment of costs is condition precedent. If the costs are not paid or deposited in this Court within 4 weeks, the Civil Application will stand dismissed without further reference to the Court. 8. The Civil Application is accordingly allowed in terms of prayer clause (a), (b) and (c). Amendment to be carried out after the costs are deposited in court. 9. If costs are deposited in court, Respondent No. 2(a) is at liberty to withdraw the said amount without furnishing any security. 10. If the amendment is carried out, notice of the admitted Writ Petition to be sent to the Respondent Nos. 2(a) since the Advocate for the Respondent No. 2(a) appearing in this Civil Application at this stage does not have instruction to appear on behalf of the Respondent No. 2(a) in Writ Petition. (GIRISH GODBOLE, J)