1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.259 OF 2008 IN CIVIL REVISION APPLICATION (ST) NO.8643 OF 2008 Moossa Cycle Wala & ors ..Applicants V/s Mohammad Bashir Mohd. Khalil & ors ..Respondents Ms.Gauri Godse, Advocate, for the applicants Mr.Amol P. Mhatre, Advocate, for the respondent Nos.1 & 2 CORAM : R.M.SAVANT, J. DATE : 2ND APRIL, 2009 P.C. . By the above Civil Application, the applicants pray for condonation of delay of 3 years and 301 days in filing the above Civil Revision Application. The applicants are the heirs of the original tenants, who have filed the above Civil Revision Application challenging the Judgment and Decree dated 5th March, 2004, passed by the learned III Ad-hoc Additional District Judge, Thane in Civil Appeal No.109 of 1999 thereby confirming the Judgment and Decree 2 dated 7th March, 1999, passed by the learned Civil Judge, Junior Division, Bhiwandi in Regular Civil Suit No.723 of 1985. 2. It is the case of the applicants that they had filed a Writ Petition in this Court on 7th March, 2005, for challenging the Judgment and Decree dated 5th March, 2004, passed by the learned III Ad-hoc Additional District Judge, Thane in Civil Appeal No.109 of 1999. In the said Writ Petition, notice was issued and the execution of the impugned Judgment and Decree was stayed. The said Writ Petition was pending for hearing as to admission. However, by Order dated 29th March, 2007, this Court was pleased to dispose of the said Writ Petition as the statutory remedy was available to the applicants to file a Civil Revision Application in view of the decision of this Court dated 24th August, 2006, in Writ Petition No.4138 of 2006. Though, the applicants were given four weeks time to file Civil Revision Application by the Order dated 29th March, 2007, the applicants have filed the instant Civil Revision Application only on 1st April, 2008. 3. The reasons for the delay have been mentioned by the applicants in paragraph Nos.3 & 4 of the above Civil Application. It is 3 the case of the applicants that the original applicant Nos.1 & 2 were prosecuting the proceedings filed by the landlord. The applicant No.1 suffered paralysis attack and is bed ridden since last two years whereas the applicant No.2 expired on 23rd March, 2004, and the appeal filed by the original applicants was dismissed on 5th March, 2004. It is the case of the applicants that the applicant No.2, during his life time, was also not keeping good health and hence was not attending the Court for the last about two months before his death. In such circumstances, the applicants were not aware about the dismissal of the appeal filed by them in the District Court. It is the case of the applicants that the applicant No.2(d) had made inquiries with their advocate appearing in the District Court some time in the second week of February, 2005, and at that time they learnt about the dismissal of the Appeal and in such circumstances, there was a delay in filing the Writ Petition impugning the Judgment and Decree dated 5th March, 2004. 4. It is the case of the applicants that the applicant No.1, being bed ridden was unable to lookafter the Court proceedings and out of the heirs of the original applicant No.2, the applicant No.2(d) had 4 taken the steps to file Writ Petition and was also looking after the Court proceedings. In so far as the applicant Nos.2(a), 2(b), 2(c) and 2(e), who are the heirs of the deceased applicant No.2 are concerned, it is the case of the applicants that they have only signed Vakalatnama as instructed by the applicant No.2(d)and thus never involved themselves and never took any steps to find out the status of the said Writ Petition. It is the case of the applicants that the applicant Nos.2(a), 2(e) and 2(i) were neither aware about any proceedings pending in this Court nor were aware about the eviction proceedings against the deceased applicant No.1 and deceased applicant No.2. It is only after they received the notice of the execution proceedings some time in the second week of March, 2008, that they became aware about the eviction decree and the proceedings filed in this Court. It is the case of the applicants that the applicant No.2(d) is residing at his native place for last more than two years hence, the applicant No.1 instructed the applicant No.2(g) to make enquiries. It is on making such inquiries that the applicant No.2 (d) informed the applicant No.2(g) about the particulars of their advocate engaged by them and informed about the disposal of the 5 Writ Petition and requirement of filing Civil Revision Application. The applicant No.2(g), thereafter, has filed the instant Civil Revision Application for condonation of delay. It is in the background of the said conspectus of facts that the applicants are seeking condonation of delay of 3 years and 301 days in filing the above Civil Revision Application. 5. On behalf of the respondent Nos.1 & 2 an affidavit-in-reply has been filed opposing the condonation of delay. It is submitted on behalf of the said respondents that the applicants have not made out any ground for condonation of delay, much less sufficient cause as contemplated in Section 5 of the Limitation Act. According to the respondents, the fact that the applicant No.1 was bedridden since last two years and the death of the applicant No.2 which occurred on 23rd March, 2004, the said factual position was prevailing even before the Writ Petition which was filed on 7th March, 2005. It is contended on behalf of the respondents that there is absolutely no explanation for the delay which has occurred since the disposal of the Writ Petition on 29th March, 2007, and in filing of the above Civil Revision Application 6 on 1st April, 2008. It is lastly contended that the decree in question which was passed in favour of the respondents and the execution proceedings also proceeded ex-parte as the applicants in spite of service did not prosecute the said execution proceedings. The respondents have obtained possession of the suit premises in the year July, 2008, and therefore, no case is made out for condonation of delay. 6. Heard the learned counsel for the parties. It would be pertinent to note that the delay on the part of the applicants is writ large at every stage of the proceedings. The decree passed by the Lower Appellate Court is dated 5th March, 2004, whereas the Writ Petition filed by the applicants was only in March, 2005. The justification that only the applicant No.2(d) was prosecuting the said proceedings and the other applicants, who are the heirs of the original applicant No.2 had only signed Vakalatnama, cannot be countenanced. The applicants, having engaged an advocate, who represented them in the said proceedings before the Appellate Court, could have immediately contacted the said advocate and enquired 7 about the status of the proceedings. 7. In so far as the period between the disposal of the Writ Petition i.e.on 29th March, 2007, and filing of the Civil Revision Application on 1st April, 2008, is concerned, there is absolutely no material placed on record justifying the said delay. This is the second stage where there is a delay in filing the proceedings. The said delay is not marginal or substantial as this Court had granted four weeks time to file the Civil Revision Application which has already expired some time in April, 2007, whereas the Civil Revision Application was filed in April, 2008. 8. Though, it is well settled by a catena of Judgments of the Apex Court that in matters relating to condonation of delay a highly technical and pedantic approach should be avoided. However, one cannot loose sight of the fact that the huge delay in the instant case is on account of the callous and negligent approach of the applicants. It is also well settled that whilst considering an application for 8 condonation of delay, the prejudice that would be caused to the party against whom the delay is condoned, is also required to be taken into consideration. In the instant case, the respondents have already obtained possession of the suit premises in July, 2008 in the execution proceedings, and hence, in my view, serious prejudice would be caused to the respondents, if the delay is condoned. 9. In that view of the matter, the applicants have not made out any case for grant of any reliefs in the Civil Application. The Civil Application is accordingly rejected. (R.M.SAVANT, J.)