1 31-cac-486-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.486 OF 2011 IN CIVIL REVISION APPLICATION NO.1078 OF 2010 Abdul Qayum s/o. Sayeed Marblewala .. Applicant V/s. Dr. Rustom J. Patel & Others .. Respondents. Mr. Jaydeep Raut i/b. Smt. Urvi R. Rathod, for the Applicant. Mr. Rumi M. Mirza, for Respondent Nos. 3 to 6. CORAM : G.S.GODBOLE, J. DATE : 26th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 On 18th August, 2011, the following order was passed:- “1 Heard the learned Advocates for the parties. 2 The learned Advocate for Respondents states that Respondent Nos.1 and 2 who were the trustees of late F. M. Patel Agiary Charity Trust, have died. The Applicant seeks 2 31-cac-486-2011.sxw condonation of delay of 115 days in filing the Civil Revision Application. The Applicant had earlier filed W.P. No. 10409 of 1009 in the first week of December, 2009, which has been allowed to be converted into a Civil Revision Revision, by order dated 9th December, 2010 and in these circumstances, the present application for condonation of delay has been filed. The learned Advocate for Respondents opposed the Civil Application, inter alia, on the ground that the another Civil Revision Application No. 336 of 2009 filed by some other Defendants, challenging the common Judgment and Decree passed by the Trial Court and the Appellate Bench of the Court of Small Causes, has been summarily dismissed by Justice R. C. Chavan by order dated 31st August, 2010. The said order is taken on record and marked “X” for identification. However, the said aspect will have to be considered when the Civil Revision Application is to be heard for admission and that cannot be the ground for refusing to condon delay, which is properly explained in paragraphs 4 to 6 of the Civil Application. The Original Respondent Nos. 1 to 6, who were the Original Plaintiffs are served and for hearing this Civil Application, only their presence is necessary before the Court and they are duly represented by Respondent Nos.3, 6 6A and 6B. Hence, Civil Application is allowed in terms of prayer clause (a). 3 List the Civil Revision Application for admission as per C.M.I.S.Programme”. 3 Though the Civil Revision Application was directed to be listed for admission, but the same has been listed "for orders" caption, since Civil Application No.486 of 2011 has been filed. 4 Since prayer for interim relief has already been made in the memo of Civil Revision Application No.486 of 2011, this C.A. is unnecessarily filed and, hence, by keeping the prayer for stay open for 3 31-cac-486-2011.sxw consideration when Civil Revision Application is heard for admission, Civil Application No.486 of 2011 is disposed off. 5 I have also heard the learned Counsel on the preliminary objection raised by the learned Advocate for the Respondents relying on the Judgment and Order dated 31st August, 2010 passed by the learned Single Judge (Coram: R.C. Chavan, J.) in Civil Revision Application No.336 of 2009. The learned Advocate for the Applicant has rightly submitted that the said Civil Revision Application was filed by Defendant Nos.8 to 11 in RAE & R Suit No.1298 of 1968 which was decreed and decree for eviction was passed in respect of godown No.28 and which decreed had been confirmed in Appeal No.263 of 2000 filed by the said Defendants who were Applicants in Civil Revision Application No.336 of 2009. The present Applicant though impleaded as Defendant No.7 even in RAE & R Suit No. 1298 of 1968 had absolutely no concern with godown no.28 and it is admitted position that Applicant is in possession of godown no.27 which is the suit premises in RAE & R Suit No.1299 of 1968, which was decreed and Applicant had filed Appeal No.528 of 1999 which had been dismissed by the impugned Judgment and Order. Perusal of the Judgments delivered by the Trial Court and the Appellate Court shows that they have passed the decree on the ground of subletting and bona fide requirement. However, perusal of the Judgment delivered by the learned Single Judge referred 4 31-cac-486-2011.sxw above would indicate that the question regarding bona fide requirement and comparative hardship has not been considered at all. Consequently, the said Judgment would amount to a confirmation of the decree passed only in Suit No.1298 of 1968 and Appeal No.263 of 2000 and obviously, the Judgment and Decree referred above which are passed in Suit No.1299 of 1968 against Applicant which is confirmed in Appeal No.528 of 1999 which are impugned in this Civil Revision Application would not merge in the Judgment and Order dated 31st August, 2010 passed in Civil Revision Application No.336 of 2009. Hence, the preliminary objection is rejected. 6 List the Civil Revision Application for admission after two weeks. The decree for eviction not to be executed until further orders. (G.S.GODBOLE, J.)