1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 396 OF 2008 Maharashtra State Road Transport Corporation .......Appellants Verus Hiraji Jayant Dhanwatay ........Respondent Mr.G.S.Hegde with Mr.C.M.Lokesh i/by.M/s.G.S.Hegde and Associates for the appellants. Mr.Vaibhav Sugdhare with Ashwin Shete i/by.M/s.Khaitan Jaykar for Intervenor. Mr.Hiralal Thakkar, Senior Counsel with Mr.D.A.Joseph i/by.M/s.David & Associates, adv.for respondent. Coram: Smt.R.P.SondurBaldota, J. Dated : 12 th August, 2008. P.C. : 1. Rule. Returnable forthwith. Mr.Thakkar waives service for the respondents. By consent, the rule is taken up on board. Heard both the counsels. 2. The only question that arises for consideration in this Civil Revision 2 Application is whether on the facts as alleged by the applicants, the lower appellate court ought to have condoned the delay and set aside the order of dismissal of the appeal. 3. By the judgment and decree dated 29th November, 2006, the suit filed by the respondent under Section 16(1)(c) of Maharashtra Rent Control Act, 1999 for recovery of possession of the demised premises from the applicant was decreed. The applicants then filed appeal, being Appeal No. 472 of 2007 to challenge the decree. The appeal was admitted and stay of execution of the decree granted. The respondent preferred Writ Petition No. 775 of 2007 to challenge the order granting stay of execution. That writ petition was disposed off by the consent order dated 26th October, 2007. By consent, the interim order of stay was set aside and the lower appellate court was directed to hear the application for stay afresh. It was also directed that the appeal be decided within a period of 6 months from the date, the parties appear before it. The parties were directed to appear before the lower appellate court on 20th November, 2007. 4. After the above order, it was expected that both parties and in particular, the applicants appear before the lower appellate court on 20th November, 2007 for expeditious hearing of the appeal. However, on that 3 day the respondent alone appeared before the lower appellate court. Therefore, the matter came to be adjourned first to 4th December, 2007 and thereafter to 11th December, 2007. On both these dates, as the applicants failed to appear for prosecuting the appeal, the lower appellate court directed the office to issue notice to the advocate for the applicants and adjourned the appeal to 9th January, 2008. Despite, receipt of notice the applicants failed to appear before the court on 9th January, 2008. Therefore, on that day, the appeal came to be dismissed for default. 5. More than three months after dismissal of the appeal, the applicants moved an application for setting aside the order of dismissal, by condoning the delay in filing the application. The applicants had assigned three reasons for their absence before the court, which reasons also form the ground for condonation of delay. The first reason was that, after decision of this court in the writ petition, the papers were required to be placed before the board of the applicants which meets only once a month. The lower appellate court rejected this ground with an observation that since the appeal was already filed, there was no need for any further reference to the board for the purpose of prosecuting the appeal. The second reason stated is that on 9th January, 2008, the learned counsel for the applicant was out of station and the third reason was that 4 the signatory of the application, the Estate Manger of the applicants “due to oversight and inadvertently” did not remain present before the court on that day. The lower appellate court did not accept any of the reasons as the same were not found satisfactory. According to it, this was a case of gross negligence and carelessness. 6. Mr.Hedge, the learned counsel for the applicants, for obvious reasons did not even make an attempt to justify any of the grounds stated in the original application. He however, submitted that the court should take a lenient view of the matter and grant one opportunity to the applicants to have their appeal decided on merits. He argued that consistent view taken by the Apex court is that the court should prefer cause of substantial justice rather than technical considerations. There can be no dispute with this proposition, but, at the same time the court cannot loose sight of its responsibility to take judicious view of the matter. It cannot exercise its discretion in an arbitrary manner. A lenient view can be taken provided there is semblance of a cause shown explaining the absence. In the instant case as rightly held by the lower appellate court, there is no cause whatsoever shown. The matter has been simply and utterly neglected. Another factor to be taken note of is that the respondent seeks to recover possession of the demised premises from the 5 applicants on the ground of his bonafide requirement. The applicants a statutory corporation, have been using the suit premises by way of staff quarters for their employees. Next, Mr.Thakkar, learned counsel for the respondent points out that the process of execution of the decree is also complete. The Bailiff has already taken possession of the demised premises from the applicants. He has however not handed over possession to the respondent in view of the order dated 25th June, 2008 passed in this application. In all the above circumstances, I find no merit in the Civil Revision Application. 7. Mr.Hegde prays that the direction given to the Bailiff be continued for a reasonable period to enable the applicants to move further in the matter. In the facts and circumstances of the case, the application is rejected. 8. It may be mentioned here that Vedant Property Private Limited has taken out a Civil Application for intervening in the proceedings. It is contended by the company that is has purchased the undivided share to the property to the extent of about 70%. Even if that is so, there is no question of the intervenors having any hearing in the present proceedings. The court is informed that there is already a suit for partition filed in the year 1996. The Intervenor may make an application for joining itself as parties to the partition suit. In the facts and 6 circumstances of the case, the Civil Revision Application is dismissed. [Smt.R.P.SondurBaldota, J]