1 rpw116.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION REVIEW PETITION NO.116 OF 2010 IN WRIT PETITION NO.6619 of 2009 Khairuddin Mehebubali Kazi ...Petitioner vs. Shakil Ahmad Abdul Gafoor Kazi and others ...Respondents Mr.R.M.Agarwal i/b Mr.Girish R. Agarwal for the petitioner Mr.S.S.Patwardhan for the respondent Nos.1 to 3 CORAM :A.S.OKA,J. DATE : OCTOBER 29, 2010 P.C. 1 By this review petition, the petitioner in the writ petition is seeking the review of the Judgment and Order dated 22nd March 2010 passed by this Court in writ petition no.6619 of 2009. By the Judgment and order under review, the writ petition filed by the petitioner was dismissed by this Court. 2. Various grounds have been urged in support of the review petition. One grievance is that the Judgment under review was pronounced long after expiry of a period of one month from the date of hearing. In the review petition, apart from the aforesaid contention, another contention raised was that the predecessor of the 1st to 3rd respondents was applicant in Special Darkhast no.41 of 1938. There are various other contentions raised by way of amendment based on the averments made in Civil Application nos.68 of 1939 and 713 of 1939 which were 2 rpw116.sxw decided by this Court along with appeal nos.23 and 24 of 1938. The learned counsel for the review petitioner has invited the attention of the Court to the said Civil Applications. As far as contention which is recorded in the order dated 6th May 2010 is concerned, the same will not survive in view of the reply filed by the respondent nos.1 to 3. It must be noted here that the submissions of the learned counsel for the petitioner was that certain issues came to be decided by this Court while passing the judgment and order under review which were kept open by the trial Court. The attention of the Court was invited to the observations made by the trial Court in the impugned Judgment and Order dated 20th January 2009 passed below application at Exh.49. It was pointed out that in paragraph 6 of the said order impugned in the writ Petition, it was observed that the application at Exhibit 49 was premature. Lastly, a submission was made that the order passed in the writ petition may be recalled and the petitioner may be permitted to withdraw the writ petition as all the contentions have been kept open by the trial Court while passing the order impugned in this writ petition. The review petition is opposed by the learned counsel for the respondent nos.1 to 3. He also opposed the prayer for recalling the order and granting permission to withdraw the writ petition. 3 I have considered the submissions. It must be noted here that in the writ Petition, the submissions were canvassed by the Petitioner on the maintainability of the proceedings filed by the respondent nos.1 to 3. At the time of hearing of the writ petition, this Court was called upon to record the findings on several aspects including the issue of maintainability of the proceedings. 3 rpw116.sxw 4. Before going to the other aspects, at the outset, it must be noted that the Judgment in the writ petition was reserved on 28th January 2010 which was pronounced on 22nd March 2010. It was contended that there was a gross delay in deciding the writ petition. One cannot brush aside the fact that every day this Court has been dealing with about 100 or more admissions and orders matters apart from final hearing matters. In any case, mere delay in delivering the Judgment is no ground for review and therefore, the said ground will have to be rejected. 5 As far as the Judgment and order under review is concerned, in paragraph 10 of the Judgment, this Court has made certain observations as regards interpretation of the original decree on the basis of the proceedings filed by the respondent nos.1 to 3. In paragraph 10, this Court has observed thus: 10...The effect of the order dated 19 th November 1938 is that the prayer for possession of her share made by the first defendant was rejected. If the argument made by the learned counsel appearing for the petitioner on the basis of this order is accepted, then the observation made by this Court that the defendants no.4 to 7 should pay adequate stamp before they get possession of their shares will be rendered meaningless. This Court while disposing of the appeal has not disturbed the decree of the trial Court under which the other plaintiffs and fourth to seventh defendants were entitled to get their respective shares separated. Therefore, the application made by the 1st to 3rd defendants was maintainable. 4 rpw116.sxw In paragraph 11 this Court has held that as of today shares of the some parties to the decree have not been separated. The second observation made by this Court is that there is no period of limitation prescribed either for making an application for drawing a final decree or for seeking a direction for sending precept to the Collector for effecting partition of the lands. What was observed in paragraph 11 is that in the impugned order, the trial Court has observed that the petitioner has not placed on record any document to show that separate shares were given to the predecessors of the respondent nos.1 to 3 herein by effecting partition. The Court observed that other issues on merits such as extent of shares of respondent nos.1 to 3 have not been decided by the trial Court and only the issue of maintainability has been decided. There cannot be any dispute about the proposition of law that there is no period of limitation prescribed either for making an application for drawing a final decree or for seeking direction for sending precepts to the Collector for partition of the lands. 5 At this stage, a reference will have to be made to the impugned Judgment and order dated 20th January 2009. In paragraph 6 of the impugned Judgment and order, the learned trial Judge has observed that the final decree application requires full fledged inquiry and trial and the application at Exh.49 was premature. In paragraph 7 of the impugned order, it is observed that, 7...However, at this stage, it is not clear that whether separation of shares was made, in view of judgment of special civil suit no. 101/1925. In such circumstances, it cannot be stated that at present final decree application is not maintainable under the provision of law. 5 rpw116.sxw The ruling relied by the applicants are useful to their stand. At this stage, I do not find any substance in application made by respondent no.1... 5 Only to a limited extent the learned counsel for the review petitioner is right in the sense that in paragraph 11 of the Judgment of this Court it is observed that the issue of maintainability has been finally decided by the Trial Court. If observations in paragraph 6 and 7 of the impugned order passed by the Trial Court are perused, it is apparent that the issue of maintainability of the final decree application filed by the respondent nos.1 to 3 has not been finally decided by the trial Court by observing that the application at Exh.49 was premature and that the final decree application requires full- fledged inquiry and trial. As noted by this Court in paragraph 11 of the Judgment, the trial Court has also noted that it is not clear whether the separation of shares was made in view of the Judgment of Special Civil Suit no.101 of 1925. Therefore, on the petition by the petitioner, the issue of maintainability could not have been concluded. 6 Therefore, while disposing of the review petition, the only clarification which will have to be made is that the issue of maintainability of the final decree application has not been finally decided under the order of this Court in the Writ Petition. The observations made by this Court as regards maintainability of proceedings filed by the 1st to 3rd respondents are tentative observations considering the available material on record. The said issue will have to be finally decided by the Trial Court after considering entire material which 6 rpw116.sxw may be placed on record at the time of hearing. To that extent, the observations made in paragraphs 10 and 11 of the Judgment of this Court will stand modified and clarified. The review petition is accordingly disposed of. JUDGE