- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1256 OF 2008 IN REVIEW PETITION ST.NO.9559 OF 2008 IN WRIT PETITION NO.651 OF 1993 WITH WRIT PETITION NO.2723 OF 1992 Shakuntala Jethalal Shah, Through P.A.Holder Mr.Madhusudan Shah. .. Applicant Vs. Rajasthan Commercial & Anr. .. Respondents -- S/Shri F.D’Vitre with H.Rehman i/b M/s.D.H.Law Associates for the Applicant. Shri Pawar for the Respondent No.1. S/Shri Ashok Maruk i/b Kirti S.Hakani for the Respondent No.2. -- CORAM : SRI R.M.S.KHANDEPARKAR, J DATED : 23RD JUNE, 2008 P.C. 1. Heard the learned advocates for the parties. The Civil Application No.1256 of 2008 is for condonation of delay of 846 days in filing the review petition. According to the applicant, she was not aware of the order passed by this Court on 14th - 2 - November, 2005 in Writ Petition No.651 of 1993 along with the Writ Petition No.2723 of 1992 till recently and it is only after having learnt about the same, the present application has been filed. 2. The facts giving rise to the present application are that by an order dated 8th September, 1992 passed in the Interim Notice No.4656 of 1989 in R.A.E.& R. Suit No.1370/4319 of 1986, the respondent No.1 herein was directed to deposit the sum of Rs.47,450/- towards the arrears of rent upto the end of September, 1992 and further to deposit monthly rent at the rate of Rs.650/- from 15th November, 1992 onwards. The said order was passed while rejecting the claim of the applicant for direction to deposit monthly rent at the rate of Rs.851/-. The said order was sought to be challenged in Writ Petition No.651 of 1993. 3. In the Writ Petition No.2723 of 1992, the order passed by the Trial Court dismissing the application for recall of the order passed under Section 11(3) of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947, for short "the said Act", was under challenge. - 3 - 4. Both the said writ petitions came up for final disposal on 14th November, 2005 when Shri M.B.Badkar, advocate, appeared for the applicant herein, who was the petitioner in Writ Petition No.651 of 1993 and the Respondent in Writ Petition No.2723 of 1992. None appeared for the respondent in Writ Petition No.651 of 1993 and for the petitioner in the Writ Petition No.2723 of 1992, though on behalf of the respondent No.1 in the latter petition Shri Raj Baid had filed Vakalatnama on record, and in the Writ Petition No.651 of 1993 both the respondents were duly served. After hearing the advocates who had appeared for the parties and on going through the records, by a common order dated 14th November, 2005 both the petitions were disposed of since the common questions of law and facts arose in both the matters. 5. Both the orders which were under challenge in Writ Petition No.651 of 1993 and the Writ Petition No.2723 of 1992 were passed in R.A.E.& R. Suit No.1370/4319 of 1986. The said suit itself came to be disposed of finally by the judgment and decree dated 4th October, 1999. The matter was carried in appeal before the appellate bench of the Small Causes Court, Mumbai, being Appeal No.65 of 2000 wherein the Cross Objection No.3 of 2000 were also filed by the - 4 - respondent, and the same were disposed of by the judgment dated 20th September, 2004 whereby the appeal was dismissed and the cross objections were partly allowed and the suit was decreed on the ground of arrears of rent. The matter was sought to be carried in Writ Petition No.417 of 2005 which was heard on 19th October, 2005 and was disposed of on the same day by a speaking order. The said petition was filed by the respondent No.1 herein. It was held therein that the case of the respondent No.1 herein was squarely covered under Section 12(3)(b) of the said Act, and therefore, there was no case for interference in the judgment of the appellate bench of the Small Causes Court. I am informed that the respondent No.1 has herein preferred the Letters Patent Appeal against the said order being LPA (Lodging) No.14177 of 2007. 6. The records apparently disclose that when the Writ Petition No.651 of 1993 and the Writ Petition No.2723 of 1992 came up for hearing before me, the respondents in the first petition and the petitioner in the latter petition never bothered to appear before me nor they have bothered to inform me that the entire suit itself had been disposed of as long back as in October, 1999 and the appeal against the same order was disposed of in the month of September, 2004 and - 5 - furthermore even the Writ Petition against the same was rejected on 19th October, 2005 nearly 25 days prior to the disposal of the said Writ Petition No.651 of 1993 and the Writ Petition No.2723 of 1992. 7. The order passed by me in the said two petitions was to the effect that the order which was sought to be challenged in Writ Petition No.651 of 1993 was set aside and the matter was remanded for reconsideration of the matter, as also in the Writ Petition No.2723 of 1992, the impugned order therein was also set aside and the opportunity was given to the parties to contest the proceedings before the Trial Court. Obviously, the said order was passed being unaware of the fact that the entire suit itself had been finally disposed of and the decree passed therein had attained finality, in the sense, the appeal against the same had also been disposed of. In the absence of knowledge of disposal of the suit, the said order dated 14th November, 2005 came to be passed by me and the same has been brought to my notice under the present application for review along with the application for condonation of delay of 846 days in filing the review application. 8. Undisputedly, there is a long delay in filing - 6 - the application. However, it is not mere delay which is material in the case in hand. What is more important is that the anomalous situation which would otherwise arise, has been brought to my notice so that I should pass an appropriate order in order to avoid such anomalous situation, in the sense that once the suit itself had been disposed of and the disposal order has attained finality on account of disposal of the appeal, the question of the Trial Court reopening the matter does not arise. However, my order dated 14th November, 2005 specifically directs such reopening of the matter. At the same time, the order dated 19th October, 2005 in Writ Petition No.417 of 2005 clearly pronounces the decree passed by the appellate bench of the Small Causes Court to be perfectly justifiable and there is no occasion for any reopening of the case. In the circumstances, in order to keep the records correct, it would be necessary for me to recall my order dated 14th November, 2005 and to hold that both the writ petitions had rendered infructuous in view of the order passed in the Writ Petition No.417 of 2005 on 19th October, 2005. Needless to say that the order passed in the Writ Petition No.417 of 2005 was prior to the order dated 14th November, 2005 passed by me in both the writ petitions. In the circumstances, merely because there - 7 - is a delay of 846 days in approaching the Court that would not justify rejection of the application for condonation of delay. The very fact that some illegality was sought to be created on account of failure on the part of the parties to bring the real facts to the notice of this Court, i.e. disposal of the Writ Petition No.417 of 2005 on 19th October, 2005 and the fact that the entire suit itself had been finally disposed of, but for suppression of the said fact from the Court the order dated 14th November, 2005 would not have been passed. In the circumstances, mere delay in bringing the said facts to the notice of this Court would not be a justification to refuse to condone the delay. Even otherwise, nothing prevents me from exercising suo moto powers to recall the order dated 14th November, 2005 in both the Writ Petitions i.e. Writ Petition No.651 of 1993 and the Writ Petition No.2723 of 1992 in the facts and circumstances of the case brought to my notice. 9. In the facts and circumstances stated above, the delay of 846 days in filing the review petition is hereby condoned. The Review Petition St.No.9559 of 2008 is directed to be registered forthwith. - 8 - 10. At this stage, the learned advocate for the respondent No.2 bank requests that on account of negligence on the part of the applicant, the bank is put to loss, and therefore, the costs should be awarded in this matter. The records clearly disclose that when the Writ Petition No.651 of 1993 and the Writ Petition No.2723 of 1992 came up for hearing on 14th November, 2005, the respondent No.2 bank was duly served and yet it did not bother to appear before the Court and to inform the Court that the suit itself had already been disposed of. In the circumstances, it was the duty of all the advocates to inform the Court about disposal of the suit and on account of failure to do so, the present exercise has to be undertaken, I do not find any justification for grant of costs to any of the parties. Hence, the request is rejected. (R.M.S.KHANDEPARKAR, J)