1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10443 OF 2009 Dhanrajmal Radhakisan Nagpal & Ors. .. Petitioners versus Ramesh P. Shirole & Anr. .. Respondents Mr.Abhishek M. Pungliya for the petitioners. Mr.Mandar Limaye for respondent No.2. CORAM : A.S.OKA, J. DATE : 20th April 2010. P.C.: . By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged an order dated 15th April 2008 passed by the trial Court by which application made by the petitioners-defendants for condonation of delay of 11 years and 6 months in filing application for setting aside ex-parte decree has been rejected. 2. The petitioners are the original defendants and the respondents are the plaintiffs. A suit for possession was filed by the respondents in respect of the suit property which is situated at Pune. The suit was filed in the year 1992 and ex-parte decree was passed on 9th October 1995. An application for setting aside ex-parte decree alongwith application for condonation of delay was made by the petitioners. 3. The case made out in the application for condonation of delay is that 2 the suit property was in dilapidated condition. The 1st petitioner and his late mother are claiming to be the lessee of the suit property. It was contended that new proceedings were initiated for road widening in respect part of the suit property. Notice under section 12(2) of the Land Acquisition Act, 1894 was served to the petitioners in last week of August 2006. On 9th February 2007 a notice under section 16 of the said Act of 1894 was received by the petitioners for delivery of possession. On 23rd February 2007 possession of the part of the suit property was taken over by the Special Land Acquisition Officer. Two days thereafter when the petitioners started fencing the remaining part of the suit property, the 2nd respondent came to the site and objected to the construction of fencing. The matter was taken to police station. At the police station it was alleged that the 2nd respondent pointed out order of the Court by which rights of the petitioners as lessees were terminated. It is stated that thereafter the petitioners made inquiry and learnt about the suit. In the su it the present 1st petitioner was impleaded as the 2nd defendant and the mother of the 1st petitioner was impleaded as 3rd defendnat. It is stated that the petitioners applied for certified copies of the judgment and decree of 29th March 2007 and same were ready on 21st April 2007. The application was filed on 27th April 2007. 4. The learned counsel appearing for the petitioners submitted that the case of the petitioners was specific that incorrect address of the defendants was given in the suit and there was no service of summons. He submitted 3 that one of the defendants, namely, the mother of the petitioners have already died and suit was continued against her. He submitted that the summons is not served to the 1st petitioner as his address given in the cause title of the plaint is wrong. He submitted that though the respondents were aware about the correct addresses of the 1st petitioner, no effort was made to serve the summons at the said address. Moreover, the order permitting service by substituted service is erroneous as no attempt was made to serve summons at the correct address. He submitted that the summons was published in Marathi newspaper and the petitioners are not conversant with the said language. He submitted that without considering the aforesaid aspects prayer for condonation of delay has been rejected. He relied upon decision of the Apex Court in the case of Kumud Lata Das Vs. Indu Prasad (AIR 1997 Supreme Court 34). He submitted that number of days delayed is irrelevant. The learned counsel appearing for the respondent supported the impugned judgment and order. 5. I have carefully considered the submissions. One of the contentions raised by the petitioners is that the service of summons by publication in newspaper “Prabhat” on 24th May 1995 cannot be treated as good service in as much as the petitioners belong to Sindhi community and therefore they cannot read and write Marathi language and hence question of petitioners coming across publication of such summons does not arise. In the cross- examination the 1st petitioner admitted that he was the resident of Pune for 4 about 35 to 40 years. He admitted that the 2nd petitioner has studied up to S.S.C in Marathi medium. In the cross-examination he reiterated that he cannot read Marathi language. He admitted to have published a public notice in Marathi language daily newspaper “Sakal” which is at Exhibit 36. After the attention of the witness was invited to the said notice, he stated that he understands Marathi but he cannot read Marathi. In the impugned order, the learned Judge has noted this aspect that the petitioners themselves have published a public notice in Marathi newspaper at Exhibit 36. Therefore, the trial Court observed that the petitioners cannot plead ignorance about knowledge of Marathi language. 6. The case made out by the petitioners before the trial Court was that the respondents were aware about the correct address of the 1st petitioner at Pune. It is stated that the second address given by the respondent by application at Exhibit 37 was also incorrect. The contention is that the notice was attempted to be served at the addresses which were incorrect. 7. In the affidavit in lieu of evidence filed by the 2nd respondent it is stated that the application has been filed at the instance of the constituted attorney of the petitioners. In the affidavit in lieu of evidence it is submitted that the said constituted attorney is a builder who is interested it the property subject matter of the suit. In the cross-examination he stated that the second address of the 1st petitioner furnished in the suit was supplied by one Mr.Bhave. 5 8. Apart from the affidavit in lieu of examination in chief of the 2nd petitioner, the petitioners filed affidavit in lieu of examination in chief of one Mr.Anil Bafna. He came out with a case in the cross-examination that at present the 1st petitioner was residing at Clover Center, 5th floor, Pune Camp, Pune. He stated that address of the 2nd petitioner was the same. He stated that even in the year 1992 the said petitioners were residing at the same address. However, he admitted that no documentary evidence has been produced to show that in the year 1992 the said two petitioners were residing at the said address in Camp area of Pune. In the further part of the cross- examination the said constituted attorney stated that the petitioners were residing at the said address in Camp area since 1989 and prior to that they were residing at 696, Raviwar Peth, Pune. As far as the 2nd petitioner is concerned, he has also not produced any evidence to show that since the year 1989 he was staying at the said address at Camp area. 9. It cannot be ignored that the delay is of 11 years and 6 months. The petitioners claim that the 2nd respondent disclosed at the police station on 25th February 2007 regarding the decree of the Court. No attempt is made to produce either copy of the complaint or record of the police station relating to the compliant in support of the said contention. The said documents were vital documents considering the specific case that till 2th February 2007 the petitioners had no knowledge about the suit. The case made out by the 6 petitioners that they had no knowledge of Marathi has been disbelieved by the trial Court for cogent reasons. The first reason is that in the year 2003 a public notice in Marathi was published in Marathi newspapers at the instance of the petitioners. Secondly, the 2nd petitioner has taken education in Marathi medium. There was no sufficient explanation for long delay of 11 years and 6 months. The fact that decree was not executed for such a long time is no ground to condon the delay. It is not possible to find fault with the discretionary order passed by the trial Court. Writ petition is rejected. Ad- interim relief granted earlier will continue to operate for a period of eight weeks from today. (A.S.OKA,J)