1 W.P. 9830.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9830 OF 2011 Abdul Gani Abdul Rehman .... PETITIONER V E R S U S The Managing Committee, Jama Masjid, Aurangabad & Oths. .... RESPONDENTS Mr. S.V.Adwant, Advocate for the Petitioner. Mr. M.D.Godhamgaonkar, Advocate for Resp. No. 1. CORAM : S.V.GANGAPURWALA, J. DATE : 21/12/2011. ORAL ORDER : 1. Heard the learned counsel for the respective parties. 2. The petitioner, vide the present Writ Petition, has impugned the order passed by the lower appellate Court in M.A.R.J.I. No. 405 of 2011, thereby allowing the said M.A.R.J.I. and condoning the delay in filing Appeal, so also the order passed below Exh. 20 granting leave to respondent no. 1 to prefer Appeal. 3. So far as the application for condonation of delay i.e. 2 W.P. 9830.2011 M.A.R.J.I. No. 405 of 2011 is concerned, Mr. Adwant, the learned counsel for the petitioner strenuously contends that the Court below has not considered the fact that the said application suffers from fundamental defects. The said application is filed by the Managing Committee, which, according to the respondent no. 1, is registered and the same is filed through the Secretary. No authorization letter or any resolution is filed on record to show that the Secretary is authorized to file Appeal and the applications. In absence of the same, the Appeal and the application itself was not maintainable. The Court could not have entertained the said application. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of M/s Hari Shree Enterprises V/s M/s Vikas Housing Ltd. & Ors. Reported in 2009 ( 4 ) ALL MR – 247 and the Judgment of the Apex Court in the case of State Bank of Travancore V/s M/s Kingston Computers ( I ) P.Ltd. Reported in 2011 AIR SCW – 1948. 4. The learned counsel further contends that when Order XXIX and XXX of the Code of Civil Procedure [ For short, ‘ the Code ’ ] is not satisfied and the said Secretary does not prove his locus to file the application, the said application could not have been considered even for a moment. The Waqf Board as per the Waqf Act is a body corporate and so would be governed by the provisions or Order XXIX of the Code. The 3 W.P. 9830.2011 learned counsel further submits that the status of the said person, who has filed proceedings as a Secretary was specifically disputed in the Say. The authorization was also disputed in the Say. In such circumstances, without proof of the authorization and of the fact that he is a Secretary, the application could not have been allowed. The law will have to be considered in its letter and spirit. The learned counsel further contends that on facts also, the Court could not have condoned the delay. 5. Mr. Godhamgaonkar, the learned counsel for respondent no. 1 supports the order and submits that the said Managing Committee has also instituted a Suit in the Waqf Tribunal. The documents are produced on record to substantiate that the person who has filed the application, is a Secretary of the Committee and the liberal approach has to be taken while considering the application for condonation of delay. The learned counsel relies on the Judgment of the Apex Court in the case of Improvement Trust, Ludhiana V/s Ujagar Singh & Ors. Reported in 2010 ALL SCR – 2321. 6. It is trite that when the procedural law and the substantive rights of the parties are pitted against each other, the cause for substantial justice will have to be sub-served. 4 W.P. 9830.2011 7. The petitioner has raised a grievance that there is nothing on record to show that the person who has filed the proceedings is a Secretary of the Trust and that he has authority to file the same, can not be countenanced for the reason that the person who has filed application for condonation of delay along with the Appeal, is also a person who has filed Suit in the Waqf Tribunal against the present petitioner and the same is subjudiced. Further, respondent no. 1 has produced on record a document showing that the said Managing Committee is registered and also that the person who has filed application is a Secretary of the said Committee and his term has been extended by one year. The lower appellate Court has observed in this regard in the order. The documents produced on record would show the fact that the Managing Committee is registered one and the person who has filed the Suit is the Secretary of the said Committee. The Secretary can be said to be the principal Officer. Even if the argument of Mr. S.V. Adwant, the learned counsel is accepted that Order XXIX of the Code will have to be followed, then the Secretary can be termed as the Principal Officer. 8. Be that as it may, the Court was only considering the application for condonation of delay. At the time of considering the application for condonation of delay, the merits of the matter are not required to be considered. The petitioner can raise all these objections 5 W.P. 9830.2011 when the substantive petition or the Appeal is heard. It is a fact that present respondent no. 1 was not a party in the Suit, which Judgment and decree is sought to be assailed by respondent no. 1 in Appeal. The delay that has been caused, has been explained. The delay is of 115 days and for the delay that is caused, respondent no. 1 is also mulct with cost by the Court. The Judgments referred by the learned counsel for the petitioner of the Apex Court in the case of State Bank of Travancore V/s M/s Kingston Computers ( I ) P. Ltd. [ supra ] and of the learned Single Judge of this Court in the case of M/s Hari Shree Enterprises V/s M/s Vikas Housing Ltd. & Ors. [ supra ] deals with the provisions of the Companies Act and the power of filing the Suit. Here, the Managing Committee has filed the Suit, which is registered under the Waqf Act and it is prima facie shown that the person who has filed the application, is a Secretary of the Trust by virtue of the documents produced on record. 9. In view of the above, I am not inclined to entertain the Writ Petition as far as the order with regard to the condonation of delay is concerned and the Writ Petition to that extent is dismissed. 10. The second order which is assailed in the present Writ Petition is the order passed below Exh. 20, purportedly to be an application for leave to file the Appeal. The said application is filed on 6 W.P. 9830.2011 07/12/2011 and it is decided on the same date. Mr. Adwant, the learned counsel submits that no opportunity for filing Say was given. The application is filed as an additional plea in application for leave to Appeal. Undue haste was committed by respondent no. 1. In view of the fact that no opportunity was given, said order can not be sustained. The learned counsel further contends that nowhere it has been shown that respondent no. 1 is an aggrieved party. 11. Mr. Godhamgaonkar, the learned counsel submits that the application was filed. A copy was served on the petitioner, but the petitioner remained absent. No error has been committed by the Court in allowing the application. 12. On perusal of the application and the order, it is manifest that the application was given on 07/12/2011 after the application for condonation of delay was decided. A certified copy of the application is also produced on record. It nowhere transpires that the Court had even called for the Say of the other side. In absence of the same, it was not accepted that the petitioner should remain present before the Court on the said date. The said application has been decided by the Court without affording opportunity to the petitioner. The same is decided in flagrant violation of the principles of natural justice. 7 W.P. 9830.2011 13. In view of the above, I am not inclined to consider the said application on the factual and legal matrix and I set aside the impugned order solely on the ground that no opportunity was given to the petitioner to contest the said application. I relegate the parties to contest application Exh. 20 and direct the District Judge, Aurangabad to decide the application Exh. 20 afresh after giving opportunity to the petitioner to file his Say and contest the said application on merits. It is submitted by the learned counsel that the matter is kept before the District Judge today itself i.e. 21/12/2011. However, some time will have to be granted to the petitioner to file Say. The petitioner shall file his Say to the said application on 23/12/2011. The District Judge, Aurangabad shall thereafter i.e. after giving opportunity to the parties to put-forth their case on the said application, shall decide the same expeditiously within the period of fifteen ( 15 ) days thereafter. 14. The Writ Petition is accordingly disposed of with aforesaid directions and observations. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9830.2011