1 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 136 OF 2009 IN SECOND APPEAL (STAMP) NO. 1015 OF 2009 WITH CIVIL APPLICATION NO. 137 OF 2009 IN SECOND APPEAL (STAMP) NO. 1015 OF 2009 WITH CIVIL APPLICATION NO. 1243 OF 2009 IN SECOND APPEAL (STAMP) NO. 1015 OF 2009 Shri Shripati Bhausahbe Golande Deceased His L.Rs. 1A Shri Maruti Shripati Golande & Ors. .. Applicants versus Shri Bapu Soma Golande @ Bapu Shankar Golande .. Respondent Mr. Anil V. Anturkar i/b S.B. Deshmukh, Advocate for the Applicants. Mr. G.S. Godbole i/b Jai V. Kanade, Advocate for the Respondent. CORAM: A.S.OKA,J DATE: 4th September, 2009. P.C. 1 I have heard Shri Anturkar, the learned counsel appearing for the applicants. I have heard Shri Godbole, the learned counsel appearing for the respondent. 2 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw 2 The Civil Application No. 136 of 2009 is an application for condonation of delay in preferring second appeal. This application has been assigned to this court in view of the administrative order passed by the Hon’ble the Chief Justice. 3 The delay in filing the second appeal is of four years and eight months. The present Civil Application has been filed by legal representatives of the original defendant No.5, the legal representatives of the original plaintiff, the defendant No.2, defendant No.3 and defendant No.4 respectively. The first respondent is the original defendant No.1. 4 During the course of hearing, it was pointed out that the original defendant No.2, defendant No.3 and defendant No.4 had filed second appeal against the same impugned judgment and order passed on 30th April, 2004. There was an application for condonation of delay in filing the said second appeal. On 15th July, 2005, a conditional order was passed in second appeal. The conditional order was not complied with, and hence the application and second appeal stood dismissed. 4 Another second appeal was preferred by the defendant No.3 and 4 on 18th January, 2005 against the same Judgment. The said second appeal was filed with an application for condonation of delay. There was a conditional order passed on 12th August, 2005 in the said application. As the said 3 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw conditional order was not complied with, on 29th August, 2005, the application for delay condonation and consequently second appeal came to be dismissed. 5 The learned counsel appearing for the applicants stated that the present civil applications in second appeal have been filed by one Shri C.P. Sethumadhavan, constituted attorney of the applicants who was not aware of filing of the earlier second appeals. He submitted that Mr. C.P. Sethumadhavan as a purchaser of the property was not aware about the proceedings. He invited my attention to an affidavit of Ms. Rajashri B. Gatlewar, advocate who had given advice to the constituted attorney. He invited my attention to what is stated in the affidavit of Ms. Gatlewar and particularly in paragraphs No. 2 to 6. He submitted that the constituted attorney of the applicants has acted as per the legal advice. He states that the affidavit shows that the constituted attorney was adviced not to prefer an appeal. He submitted that the said constituted attorney was obviously not aware about the filing of the earlier second appeals. 6 He invited my attention to the averments made in Civil Application No. 1243 of 2009. He submitted that as the applicants No. 3, 4 and 5 had already preferred second appeals, their names be permitted to be deleted with a liberty to them to take appropriate steps for getting the earlier second appeals restored. He stated that as the other applicants did not prefer a second appeal 4 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw earlier, the said applicants be permitted to prosecute the present application for condonation of delay in filing second appeal. He submitted that sufficient cause is made out in view of averments made in the application as well as the affidavit filed by the advocate. 7 The learned counsel appearing for the respondent submitted that there is a suppression of material facts and no sufficient cause is made out. 8 I have considered the submissions. It is not in dispute that earlier two second appeals were preferred by the first, fourth and fifth applicants in this application and the said second appeals have been dismissed for non prosecution in the year 2005. It is true that the present application for condonation of delay is preferred by the constituted attorney of the applicants. However, there is no justification for not even referring to the earlier two second appeals which were filed and dismissed in the year 2005. Therefore, this is a clear case of suppression of material facts on the part of the applicants while preferring the present appeal. Now an attempt is made by the said applicants by filing Civil Application No. 1243 of 2009 by which the concerned applicants who had preferred earlier second Appeals want to withdraw the application for condonation of delay with a liberty to apply for restoration of second appeals which have been dismissed way back in the year 2005. The fact that Civil Application for condonation of delay is filed by their 5 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw constituted attorney is no justification for suppressing the material fact of filing earlier second appeals. In any case, after having suppressed material facts while filing the present application, the said three applicants cannot be permitted to withdraw the application with liberty to file a restoration application. The second appeals have been dismissed nearly four years back and therefore, now there is no question of granting any indulgence to such applicants who are not only guilty of delay and latches but also of suppressing material facts. 9 Now turning to the averments made in the application as regards other applicants, there is no averment made therein to show what prevented the said applicants from preferring second appeal within limitation. As stated earlier, the delay is of four years and eight months. The allegation that the constituted attorney was adviced not to prefer a second appeal cannot be an excuse as the concerned applicants themselves could have always preferred second appeal within the time provided by law. Apart from this, it is not possible to accept that the constituted attorney could not prefer second appeal only on account of legal advice received by him. There is no explanation in the application for long delay of four years and eight months. Apart from conduct of the some of the applicants, even by taking a liberal view it is not possible to condone the delay as there is absolutely no explanation for long delay of four years and 6 CA 136.2009, CA 137.2009 & CA 1243.2009 in WP 4606.2008.sxw eight months. 10 Hence, I pass following order: i Civil Application No. 136 of 2009 is rejected. ii Civil Application No. 1243 of 2009 is rejected. iii As application for condonation of delay is rejected, Civil Application No. 137 of 2009 does not survive and the same is rejected. Judge.