1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.486 OF 2007 Mr. Manzoor Abdul Razzak Kazi .... Applicant Vs. Mr. Barkatali Abdul Razzak Kaxi .... Respondents & Ors. Mr. S.M. Raikar, Advocate for Applicant. Mr. R.N. More, Advocate for respondents no. 1 to 3. Coram : SMT. R.P. SONDURBALDOTA,J Date : 19th September, 2008 P.C. 1. This Civil Revision arises out of order dated 26th June, 2007 passed by learned Ad-hoc District Judge-1, Raigad-Alibag granting an application for condonation of delay in filing Civil Miscellaneous Application in the District Court, Alibag, by the respondents. 2. By the order dated 18th December, 2002 passed by the Civil Judge, Junior Division, Panvel an heirship certificate under the Bombay Regulations for Recognition of Heirs, Executors and Administrators came to be granted to the revision-applicant in respect of property of one Sonubai. The revision-applicant claims to be the only heir of Sonubai in respect of the property on the basis of the gift deed executed by Sonubai in his favour. On 9th December, 2004, respondents 2 filed an appeal in the District Court, Alibag challenging the heirship certificate together with an application for condonation of delay. That was allowed with an observation that since the appeal involves rights relating to immovable properties, it is necessary to take liberal approach while interpreting the term `sufficient cause'. 3. The revision-applicant challenges the order on the ground that the appeal itself was not maintainable since the respondents are not preferable heirs. Secondly that the learned Judge had not considered the contentions of the revision- applicant in his reply filed to the application for condonation of delay. Lastly that the respondents had not made out any case for condonation of delay. 4. Before considering the Civil Revision Application on it's merits, it is necessary to decide the preliminary objections taken up by the respondents. They contend that the present Civil Revision Application is not maintainable in view of the amendment to Section 115 of the Code of Civil Procedure in the year 2002. By the amendment, the scope of the revision application has been considerably reduced by removing certain types of matters from it's ambit. The proviso to Section 115 (1) which puts limitations on the powers of the Court, reads as follows: “Provided that the High Court shall not 3 under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.” 5. Mr. Kore, learned Advocate for respondent no. 3 submits that it cannot be said that even if the order on the application for condonation of delay, were to be made in favour of the revision- applicant, the same would finally dispose of the matter. Undoubtedly the scope of revision-application has been considerably narrowed by the amendment to Section 115 in the year 2002. The High Court can vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. Therefore the test to be applied would be whether by the order passed in favour of the revision-applicant, the main proceedings would stand terminated or finally decided. Since the application was for condonation of delay in filing the appeal, unless the delay is condoned, there is no chance of the appeal being taken up for consideration. Thus, if the delay not to be condoned, the appeal filed by the respondents would stand terminated and finally disposed for all purposes. Therefore, it cannot be said that the Section 115 of the C.P.C. does not cover the instant case. It must therefore held that the instant Civil Revision Application is maintainable. 4 6. Coming to the merits of the Civil Revision Application, the first contention of the revision applicant that the appeal itself is not maintainable because the respondents are not preferable heirs cannot be considered at the stage of condonation of delay in filing the appeal. 7. The next argument of the revision- applicant is that his reply filed in the application has not been considered by the learned Judge. Perusal of the impugned order shows that though there is a reference therein to the reply filed by the revision-applicant, none of the contentions taken up by the revision-applicant in his reply find mention therein or have been dealt with therein. It is also the contention of the revision-applicant that the respondents have not made out any cause of condonation of delay. 8. According to the revision-applicant, respondents were well aware of the application made by him for the heirship certificate and therefore there has been considerable delay in filing the appeal which does not deserve to be condoned. The respondents on the other hand contend that they learnt about the heirship certificate only when the revision applicant filed his reply dated 20th October, 2004 in the Civil Application taken out by them in the High Court proceedings. Thereafter they waited for obtaining certified copy of the heirship certificate before filing the instant appeal. Respondent No. 1 is resident of Rajapur and respondents no. 2 and 3 are 5 residents of Thane District. The application for the heirship certificate had been issued by the Court at Panvel. Therefore the claim made by the respondents that they were not aware of the proceedings as regards grant of heirship certificate cannot be disbelieved. It is to be noted that after they learnt about the grant of heirship certificate, they have not wasted much time in approaching the Court. The learned Judge rightly holds that since the issue involves rights to immovable properties, a liberal view is to be taken in the matter. Hence, the order. O R D E R . The Civil Revision Application is dismissed in limine. (SMT. R.P.SONDURBALDOTA,J)