(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Civil Application No. 10071 of 2011 (In Review Application Stamp No. 21800/2011) (In Second Appeal No. 773 of 2010) 1. Vimalbai Raman Gujar, Age : 52 years, Occupation : Agriculture, R/o. Japi, Tal. & Dist. : Dhule. 2. Nilam Raman Gujar, Age : 25 years, Occupation : Agriculture, R/o. : Japi, Tal. & Dist. : Dhule. 3. Rajendra Raman Gujar, Age : 35 years, Occupation : Agriculture, R/o. Japi, Tal. & Dist. : Dhule. 4. Vijay Raman Gujar, Age : 22 years, Occupation : Agriculture, .. Applicants R/o. Japi, Tal. & Dist. : Dhule. (Original defendant nos.2, 9, 10, 11 and 5. Raman Jagan Gujar, 12) Age : 57 years, Occupation : Agriculture, R/o. : Japi, Tal. & Dist. : Dhule. versus (2) 1. Sau. Shantabai Vasant Gujar, Age : 60 years, Occupation : Agriculture, R/o. Varkhede, Tal. & Dist. : Dhule. 2. Smt. Bhagirathibai w/o. Daulat Gujar, Since deceased through legal heirs which are already on record as defendant Nos.2 and 13. 3. Bhatu Bhidas Gujar, Age : 25 years, Occupation : Postman, R/o. Galwade, Taluka : Amalner, District : Dhule. 4. Ramkrishna Bhaudas Gujar, Age : 22 years, Occupation : Agriculture, R/o. Galwade, Taluka : Amalner, District : Dhule. 5. Sau. Rajubai Mahendra Patel, Age : 40 years, Occupation : Household, C/o. Mahendra Daulat Patel, R/o. Mohadi (Nyahlod), Tal. and Dist. : Dhule. 6. Sau. Kalpanabai Chandrakant Patel, Age : 38 years, Occupation : Household, C/o. Chandrakant Hiraman Gujar, R/o. Varkhede, Tal. and Dist. : Dhule. (3) 7. Sangitabai Laxman Gujar, Age : 35 years, Occupation : Household, C/o. Laxman Motilal Gujar, R/o. Kusumbe, Taluka : Chopada, District : Jalgaon. 8. Rekhabai Vijay Gujar, Age : 22 years, Occupation : Household, C/o. Vijay Narayan Gujar, R/o. Kusumbe, Taluka : Chopada, District : Jalgaon. 9. Sushilabai Purushottam Gujar, Age : 50 years, Occupation : Household, R/o. Varkhede, Taluka : Kundane, District : Dhule. 10. Purushottam Gajmal Gujar, Since deceased through L.Rs. : 1. Sushila Purushottam Gujar, Age : 40 years, Occupation : Agriculture. 2. Vilas Purushottam Gujar, Age : 30 years, Occupation : Agriculture, R/o. Varkhede, Taluka : Kundane, District : Dhule. (4) 11. Bansilal Daulat Gujar, Age : 60 years, Occupation : Agriculture, R/o. Japi, Tal. and Dist. : Dhule. 12. Dnyaneshwar Motilal Gujar, Age : 42 years, Occupation : Agriculture, R/o. Japi, Tal. and Dist. : Dhule. 13. Rajendra Pandharinath Gujar, Age : 38 years, Occupation : Agriculture, R/o. Japi, Tal. and Dist. : Dhule. 14. Minal Rajendra Jain, Age : Major, Occupation : Household, R/o. Plot No. 49, Vakharkar Nagar, Dhule. 15. Lata Murari Khandelwal, Age : Major, Occupation : Household, R/o. Galli No.4, CTS No. 2835, Tal. and Dist. : Dhule. 16. Kalpana Manohar Khandelwal, Age : Major, Occupation : Household, R/o. Galli No. 4, Bhandi Bazar, Tal. and Dist. : Dhule. (5) 17. Rajeshri Jagdish Khandelwal, Age : Major, Occupation : Household, R/o. Malegaon Road, CTS No. 4740/2, Tal. and Dist. : Dhule. .. Respondents. (No.1 - Original 18. Varsha Suresh Khandelwal, plaintiff, and Age : Major, Nos.2 to 18 - Occupation : Household, Original defendant R/o. Malegaon Road, Nos. 1, 3, 4, 5, 6, 7, CTS No. 4740/2, 8, 13, 14, 15, 16, 17, Tal. and Dist. : Dhule. 18, 19, 20, 21 and 22, respectively) ....................... Mr. P.D. Bachate, Advocate for the applicants (Original defendant nos.2, 9, 10, 11 and 12). Mr. M.H. Patil, Advocate, for respondent no.1 (Original plaintiff). ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 15TH NOVEMBER 2011 COURT'S ORDER : 1. Mr. M.H. Patil, learned Counsel, undertakes to file (6) Vakalatnama for respondent no.1 / original plaintiff. Leave granted file Vakalatnama for respondent no.1 in the office. 2. Heard learned Counsel for the applicant and learned Counsel for respondent no.1, finally. 3. This is an application preferred by the applicants for condonation of delay of 158 days caused in filing accompanying Review Application seeking review of the judgment and order dated 17th February 2011, in Second Appeal No. 773 of 2010, passed by this Court. 4. The applicants submit that there is minor delay in filing accompanying Review Application which is caused only due to illness of the undersigned applicant who is looking after family of the applicant. It is submitted that the undersigned applicant is handicapped and could not take positive steps for filing present Review Application, and due to poor condition of the family, he has failed to make necessary expenses for filing the Review Application. It is further submitted that the delay is caused only due to incapacity of the undersigned applicant. It is submitted that the other applicants of the present application are dependent upon the undersigned applicant in whose favour property in issue is gifted. (7) 5. It is canvassed that initially papers were handed over to the Advocate for filing Review Application, but the undersigned applicant could not approach the chamber of the Advocate as he failed to make necessary expenses for filing Review Application. After arrangement of necessary funds, the undersigned applicant approached the chamber of the Advocate, and in that exercise, minor delay occurred in filing accompanying Review Application which is totally unintentional, and therefore, urged that the delay be condoned. 6. It is further submitted that as observed by the Hon. Apex Court, in the cases reported at AIR 1987 SC 1353, and AIR 1998 SC 3222, concerned court should adopt pragmatic and liberal approach while dealing with application for condonation of delay, to avoid multiplicity of litigation and in the interest of justice. It is further submitted that the applicants have good case on merits and they have every hope to succeed in the present Review Application, and if delay is not condoned, it would cause great hardship and prejudice to the applicants, and the applicants would suffer irreparable loss and great hardship. Accordingly, the applicants have prayed that the present Application be allowed and delay of 158 days caused in filing accompanying Review Application be condoned. (8) 7. Learned Counsel for respondent no.1 / original plaintiff, opposed the present Application and countered the arguments canvassed by the learned Counsel for applicants, vehemently. It is submitted by the learned Counsel for respondent no.1, that the respondent no.1 is aged 73 years old, and she has been deprived of the fruits of the decree passed in her favour. It is further submitted that there are in all five applicants in the present Application who could have taken care of filing the Review Application within the period of limitation, but no reason has been given, why other applicants have not filed the accompanying Review Application within the period of limitation. It is also submitted that the case put forth by the applicants in respect of handicapness is about applicant no.2, Nilam s/o. Raman Gujar, but other applicants, who were hail and hearty, could have filed accompanying Review Application within the period of limitation, but so did not happen. It is further submitted that the applicants have not put forth the sufficient cause for condonation of delay. Moreover, it is submitted that the delay caused in filing accompanying Review Application is inordinate delay of 158 days, and the same has not been accounted for by the applicants properly. 8. In the circumstances, learned Counsel for respondent (9) no.1 urged that the present Application is devoid of any merits and bears no substance, and therefore, same be rejected. 9. On perusal of the contents of the present Application and considering rival submissions advanced by the learned Counsel for the parties, admittedly, the suit filed by respondent no.1 i.e. original plaintiff was partly decreed in the year 2005, and apparently, there is substance in the contention that the respondent no.1 / original plaintiff has been deprived of enjoying fruits of the said decree, so far. Moreover, the reason of handicapness put forth by the applicants is in respect of applicant no.2, namely, Nilam s/o. Raman Gujar, only, and the applicants have not given proper explanation why the other applicants i.e. applicant nos.1, 3, 4 and 5 did not file the Review Application within the period of limitation. No doubt, mere averment is made in the application, that the other applicants are dependent upon the undersigned applicant i.e. applicant no.2, but considering the ages of the other applicants, such as, applicant no.3, Rajendra, aged about 35 years, and applicant, Vijay, aged 22 years, the proposition put forth by the applicants, apparently, is not conceivable. 10. Moreover, another ground put forth by the applicants for condonation of delay, is that poor financial condition of the (10) applicants. However, nothing is produced on record to substantiate the said contention. Moreover, delay of 158 days has been caused in filing accompanying Review Application i.e. almost more than five months, and therefore, said delay appears to be inordinate delay. Pertinently, the applicants have not accounted for the said delay in proper manner. Moreover, no particulars have been given by the applicants, when he received certified copy of the impugned order, on which date the applicant no.2 approached the chamber of his Advocate, on which date papers were handed over to the Advocate, and hence, in the absence of such details and particulars, the averments made by the applicants and cause put forth by the applicants in respect of condonation of delay is not digestible, and consequently, cannot be construed as sufficient cause therefor, and hence, present Application deserves to be rejected. 11. Apart from that, even on merits, it is significant to note that even the applicants have not filed written statement before the trial court and the suit proceeded against them without written statement, and apparently, the applicants have not made any efforts to set aside the said order, to put forth their case before the trial court. Moreover, it is also pertinent to note the observations made by this Court in paragraph 14 of the order passed on 17th February 2011, in Second Appeal No. 773/2010, (11) and this Court has observed thus : " Learned Counsel for the respondents pointed out that Shri Thakwani, Advocate, appeared for the appellants before the First Appellate Court and the observations have been made by the First Appellate Court in para no.8 that he (Shri Thakwani, Advocate) is not going to oppose the case made out by the plaintiff, but made submissions to dispose of the appeal, and ultimately, prayed for modification in the decree. Accordingly, in fact, while passing the judgment and decree in Civil Appeal, the First Appellate Court modified the judgment and decree passed by the Trial Court, thereby giving 1/3rd share to appellant no.1 herein, namely, Vimalbai, and it is also made clear that appellant nos.2 to 5 i.e. defendant nos.9, 10, 11 and 12 would step into the shoes of appellant no.1 herein, since original ancestor Daulat had three daughters, namely, Shantabai (plaintiff), Vimalbai (defendant no.1) and Sushilabai (defendant no.13). " Moreover, the observations made by this Court, in paragraph 15 of the order dated 17th February 2011, in Second Appeal No. 773 of 2010, also cannot be overlooked, which read thus : " Moreover, it is also pertinent to note that the defendants, against whom the judgment and decree has been passed, have not challenged the same; whereas the defendants i.e. appellants herein have challenged the judgment and decree (12) passed by the Trial Court as well as the First Appellate Court without making any efforts in respect of filing their written statements before the Trial Court, which cannot be permitted. " Hence, aforesaid observations made by this Court clinches the issue in controversy even on merits, and hence, there is no substance in the present Application and same is devoid of any merits, and therefore, same deserves to be rejected. 12. In the result, present Civil Application which is sans merits, stands dismissed, and is disposed of finally. Consequently, leave to file Review Application is refused. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/civa10071