1 nms-832-09 in s-2341-84 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.832 OF 2009 IN SUIT NO.2341 OF 1984 Ratanbai Ratanshi Haria & ors. ....Plaintiffs V/s. Liladhar Bhoja Haria & Anr. ....Defendants Mr. Rakesh Agarwal for Applicant/Plaintiff Mr.J.S.Kini i/b Mr. Suresh Dubey for the Defendant No.1 CORAM : R.M. SAVANT, J. DATE : 8TH MARCH, 2011. P.C. :- 1 The above Notice of Motion have been filed by the Plaintiff for condonation of delay of 3 years and 7 months in filing of the above Notice of Motion for restoration of the above suit. The Plaintiffs have prayed for recall of the order dated 22-7-2005, dismissing the suit for non prosecution. 2 The grounds made out for condonation of delay are to be found in paragraphs 10 and 11 of the Affidavit in support of the Notice of Motion. The reasons as can be culled out are to the effect that the Plaintiff No.2 claims that he had informed his Advocate Mr. V.R.Shetty about the difficulty faced by him on account of his medical treatment, his proposed operation, operation of his sister, mother etc. He also claims that he communicated to his Advocate that he will be not in a position to attend the matter. It is further mentioned in paragraph 10 that Plaintiff No.2 relied 2 nms-832-09 in s-2341-84 upon the words of his Advocate that he will be doing the needful in the matter and being rest assured, the Plaintiff No.2 concentrated on his family problems. In paragraph 11 of the said affidavit, it has been mentioned that on account of the death of his mother, he and his family members were in deep shock and it took about three months for them to recover from the said shock. It is, thereafter that the Plaintiff No.2 contacted his Advocate Mr. V.R.Shetty towards the end of January 2009 and inquired from him about the next date of hearing of the suit. It is claimed by the Plaintiff No.2 that it is at the said time, he was shocked and surprised to know about the dismissal of the suit on 22-7-2005. 3 The Plaintiffs/Applicant have also mentioned the ailments of the other Plaintiffs including Plaintiff No.2, in the said affidavit in support. 4 On behalf of Defendant No.1, an affidavit in reply has been filed questioning the reasons mentioned by the Plaintiffs for seeking condonation of delay of 3 years and 7 months. It is the case of the Defendant No.1 in the said Affidavit, that apart from the said affidavit in support lacking in any particulars especially relating to the contemporaneous time when the suit came to be dismissed for non prosecution, the affidavit in reply also suffers from non disclosure. To the said Affidavit in reply of Defendant No.1, is annexed copy of the Contempt Petition being No.334 of 2007 as well as two orders dated 24-7-2008 and 24-11-2008, passed in the said Contempt Petition. According to the Defendant No.1, the Plaintiffs have not made out any ground for restoration of the suit by condoning the huge delay of 3 years and 7 months. It is 3 nms-832-09 in s-2341-84 contended that the Plaintiffs were very much aware of the dismissal of the said suit or were at least made aware in the year 2007 itself of the dismissal of the said suit and, therefore, the Plaintiffs are not entitled for any relief to file the Notice of Motion in the year 2009. 5 I have heard the learned Counsel for the Applicant/Plaintiffs and the Learned Counsel for the Defendant No.1. It was sought to be submitted on behalf of the Plaintiffs that, on account of certain difficulties which had arisen in view of the illness and death of the mother on 24-10-2008 and the vision problem of Plaintiff No.2 and the shifting to Gujarat of Plaintiff No.3 and on account of the fact that Plaintiff NO.4 was suffering from breast cancer, which ultimately resulted in she being operated upon, that the Plaintiff could not vigilantly prosecute the said suit. It was sought to be contended on behalf of the Plaintiffs that the suit being one filed for claiming the right on the basis of the property being joint family property, if it is not allowed to be prosecuted on merits, great prejudice is likely to be caused to the Plaintiffs. It was further sought to be contended that though no specific details have been mentioned in the Affidavit in support, this Court may not take a highly technical view of the matter in considering the application for condonation of delay, as the Defendant No. 1 has also not questioned the illness of the Plaintiffs, in support of which certain documents like medical reports etc., have been relied upon by the Plaintiffs. The Learned Counsel for the Plaintiffs relied upon the Judgment of the Apex Court reported in AIR 1987 SC page 1352 Collector Land Acquisition Ananthnag Vs. Katiji & Ors.` In the said Judgment, the Apex Court has laid down certain principles and guide lines in the matter of 4 nms-832-09 in s-2341-84 considering an application for condonation of delay. The Learned Counsel for the Plaintiffs then relied upon Judgment of the Apex Court reported in AIR 1998 SC page 3222 N. Balkrishnan Vs. M.Krishnamurthy. In the said case delay of about 883 days was condoned by the Trial Court was interfered to by the High Court by allowing the Revision application and setting aside the said condonation of delay. Relying upon paragraph 9 of the said Judgment, it is sought to be contended that the length of the delay is not the criteria, but the acceptability of the reasons can only be the criteria that can be taken into consideration. 6 Per contra, it is submitted by Shri Kini, the Learned Counsel appearing for Defendant No.1 that the above application filed by way of Notice of Motion, is not bonafide in the context of the orders passed in the contempt petition, as also in the context of the proceedings that are pending in the City Civil Court, Bombay. The Learned Counsel would contend that the Plaintiffs are seeking to take undue advantage of the illness suffered by some of the Plaintiffs, though the same can not be a ground according to the Learned Counsel. The Plaintiffs have failed to demonstrate that the illnesses were during the same contemporaneous time when the suit came to be dismissed for non prosecution. The Learned Counsel for the Defendant No.1 relied upon the same Judgment in N.Balkrishnan (Supra) to contend that it is not in every case that this Court should liberally construe Section 5 and accept the reasons mentioned by the Applicant seeking condonation of delay. 7 Having heard the Learned Counsel for the parties and having 5 nms-832-09 in s-2341-84 perused the pleadings, in my view, the Plaintiffs have not made out sufficient cause for condonation of a huge delay of 3 years and 7 months. 8 At the out set, it is required to be noted that the above suit has been affirmed by the Plaintiff No.2 as the Power of Attorney holder for the other Plaintiffs. The instant Notice of Motion and the Affidavit in support thereto has also being affirmed by the Plaintiff No.2. Hence, the record ex- facie discloses that it is the Plaintiff No.2, who was in charge of the above suit and who was pursuing the above suit on behalf of the other Plaintiffs. In the aforesaid back ground, the reasons mentioned by the Plaintiffs as regards the illness of the other family members would have to be considered. It is relevant to note that the mother of the Plaintiffs No.2 to 4 i.e. Plaintiff No.1 died in the year 2008, therefore, the death of the mother was long after the suit came to be dismissed for non prosecution on 22-7-2005. The reason of Plaintiff No.3 going away to Gujarat after her marriage in the year 2004 and the illness of the Plaintiff No.4 cannot be accepted as a ground, in view of the fact, it is the Plaintiff No.2 who was prosecuting the above proceedings as a Power of Attorney holder of the other Plaintiffs. It is also required to be noted that, the Plaintiffs very conveniently state that the deponent of the Affidavit in support i.e. the Plaintiff No.2 states he contacted the Advocate Mr. V.R.Shetty in the year 2009. The Affidavit in support is conspicuously silent, as regards the period between 2005-2009. This would have to be considered in the context of the Contempt Petition filed in this Court by the Defendant No.1 and the orders passed therein. There is substance in the contention of the Learned 6 nms-832-09 in s-2341-84 Counsel that the Defendant No.1, that the above application by way of Notice of Motion is not bonafide and has been filed with ulterior motives so as to stall the Defendant No.1 from obtaining any reliefs from the Bombay City Civil Court in the pending suit. 9 In so far as, the Contempt Petition is concerned, the same came to be filed by the Defendant No.1 alleging breach of the order dated 1-9-1987 passed by the City Civil Court, Bombay by the Plaintiff No.2. The contempt alleged was In the matter of conducting the provisional/grocery store of which, the Plaintiff No.2 was appointed as agent of the Court Receiver by the City Civil Court Bombay. In the said contempt Petition, notice came to be issued on 26-3-2007 and it would have to be assumed that the Plaintiffs were served immediately, thereafter, say by October 2007. The Contempt Petition appeared from time to time before a Learned Single Judge of this Court. By order dated 24-7-2008, at the request of the Plaintiff No.2, who was the Respondent No.2 in the said Contempt Petition, the Learned Single Judge was pleased to adjourned it to 8-8-2008, after recording that the Respondent No.2 had from time to time sought adjournment. Thereafter, the Contempt Petition appeared on 24-11-2008, when it came to be admitted as a Learned Single Judge of this Court observed that there was a prima facie case of contempt of having being committed by the Plaintiff No.2. It is pertinent to note that on the said date, the Plaintiff No.2 did not appear. Therefore, the Plaintiff No.2 was, in fact, served with the said contempt petition and had also appeared in the said contempt petition from time to time except on 24-11-2008. What is relevant 7 nms-832-09 in s-2341-84 from the point of view of the present proceeding is that in the said contempt petition in paragraph 8, a specific averment has been made that the instant suit i.e. Suit No.2341 of 1984 came to be dismissed on 22-7-2005, to the said Contempt Petition, was also annexed the order dated 22-7-2005. The Plaintiffs including the Plaintiff No.2 were therefore made aware of the said dismissal of the suit at least by October 2007, when the said contempt petition was served on Plaintiff No.2. However, there is a conspicuous silence in so far as the aforesaid proceedings are concerned, in the Affidavit in support. After the receipt of the reply by the Defendant No.1, the Plaintiff No.2 has sought to skirt the issue by stating that dealing with the case made out by the Defendant No.1 in the affidavit in reply filed in the above Notice of Motion would jeopardize his case in the contempt proceedings. This is not a bonafide reply that has been given by the Plaintiffs to the averment made by the Defendant No.1 in the affidavit in reply. There is also substance in the contention of the Learned Counsel for the Defendant No.1 that the above application has been filed to stall the Defendant No.1 from obtaining any orders in the pending suit in the City Civil Court, Bombay. Here, it is required to be noted that the Learned Single Judge of this Court directed the Defendant No.1 to file an application in the Trial Court for directing the Court Receiver to take possession of the suit premises. It appears that the Court Receiver has in turn, filed an application which was placed before the concerned Learned Judge of the Bombay City Civil Court. It appears that with the motive to stall the Defendant No.1 from getting any relief from City Civil Court 8 nms-832-09 in s-2341-84 Bombay that the instant Notice of Motion has been filed immediately thereafter for restoration of the Suit. 10 It is required to be noted that the above suit is filed by the Plaintiffs for claiming a declaration that the suit property i.e. two shops wherein the grocery store is being run, is a joint family property. The suit in the City Civil court Bombay is also concerning one of the shops. It is, therefore, impossible to believe that the Plaintiff No.2 who has been litigating on behalf of the other Plaintiffs, was not aware of the dismissal of the said suit on 22-7-2005. Assuming that, he was not aware, at least he was made aware in October 2007 and there is no justifiable reason set out by the Plaintiff No.2 in the affidavit in support, as to why the Notice of Motion was filed only in February 2009. The lack of bonafides, in my view, are writ large. It is well settled that condonation of delay is a matter of discretion of the Court, which has to be exercised judiciously . In my view, considering the aforesaid conspectus of facts, the Plaintiffs, in my view are not entitled for the exercise of any discretion in their favour. 11 Notice of Motion is accordingly dismissed. (R.M.Savant, J.)