* 1 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3564 OF 2010 IN FIRST APPEAL NO. 937 OF 1985 Mansab Khan (since deceased) & Ors. .....Appellants/ Orig.Defds. V/S. M/s. Silver Star Restaurant & Ors. .........Respondents/ Orig.Plffs * * * * * * Mr. R.S. Apte i/by. Mr. S.M. Kazi, Advocate for the applicants- appellants. Ms. Manasi Karandikar, Advocate for the respondents. Coram : Smt. R.P. SondurBaldota, J. 20 October, 2010. P.C. : 1. This Civil Application is filed for setting aside the order dated 23.01.2002 dismissing the appeal for non-compliance of * 2 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 the directions of this Court dated 12.08.2002 and for its restoration for hearing. The application is opposed by the respondents. This application is infact the third attempt at restoration of the appeal. 2. By the judgment and order dated 5.10.1985 the Bombay City Civil Court decreed Short Cause Suit No.7319 of 1969 filed by the respondents against the appellants. Being aggrieved by the decree, the present appeal came to be filed. The appeal was admitted on 22.11.1985 and its hearing expedited. By the same order, the respondents were directed to file paper-book in the appeal and serve a copy thereof upon the appellants’ advocate by the end of July 1986. The appeal was to come up for final hearing in February, 1987. The respondents did not file the paper-book as per the directions. The appellants also took no steps in the matter despite obtaining the order of expeditious hearing. The office then placed the appeal for orders on 12th August, 2002 when fresh directions came to be issued asking * 3 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 the appellants to file paper-book within a period of 8 weeks from that date. The order directed that in the event the appellant failed to file the paper-book within the time granted, the appeal would stand dismissed without any further reference to the court. As the appellants failed to comply with the order dated 12.08.2002 the appeal stood dismissed by the office order dated 23.10.2002. 3. The first application for restoration was filed on behalf of the appellants on 25.09.2008. It was filed by one Moharam Mansab Khan as the heir of original appellant no.1. Later, on 24.07.2010 the same person filed Civil Application No. 3051 of 2010 for bringing the heirs of appellant no.1 on record. The second application came to be decided first i.e. on 30.08.2010. The application was dismissed since appellant no.1 had died during pendency of the suit itself, even before the decree in the suit was passed. As the appeal by appellant no.1 was an appeal by a dead person, the Court opined that there was no question * 4 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 of bringing the heirs of appellant no.1 on record. Thereafter, the application for restoration of the appeal came to be withdrawn on 20.09.2010 in view of the orders on the earlier Civil Application. There was a request made for liberty to file a fresh application for restoration which not specifically granted. Mohram Mansab Khan has now filed the present Civil Application on 23.09.2010 as Constituted Attorney of appellant no.3, based upon the power of attorney dated 15.07.2010. It would be relevant to mention at this stage that except for appellant no.3, all the other appellants i.e. appellants no.1, 2, 4, 5 and 6 are dead, with appellant no.1 having died during the pendency of the suit and appellants no.2, 3, 5 and 6 having died during the pendency of the present appeal. 4. As regards appellant no.3, it has been pointed out by Ms. Karandikar the learned counsel for the respondents, that this appellant in the written statement filed in the suit has made a categorical statement that he and appellants no.4, 5 and 6 claim * 5 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 no right whatsoever in the disputed premises. As per the common written statement filed in the suit, appellants no.1 and 2 alone had claimed a right to occupy the premises in dispute. Appellant no.3 is also no longer staying in the premises in question having shifted in the year 1992 to the native place in Uttar Pradesh after suffering physical handicap. 5. In the present application for restoration, it is claimed that appellant no.3 learnt about dismissal of the appeal only on receipt of notice of the application under Order 21 Rule 22 Civil Procedure Code in the month of August, 2008. The application does not specify date of service of notice. It also does not mention the place of service. Mr. Apte, the learned Senior Counsel appearing for the applicant, states that notice upon appellant no.3 was served at the premises in dispute and that it was accepted by the Constituted Attorney as a male member residing in the premises. No such claim has been set out in the application. Ms. Karandikar, on the other hand contends that * 6 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 the occupants of the premises in dispute who are only the heirs of appellant no.1 had come to know about the execution proceedings in the year 2007 itself. The application for execution as filed originally was only against the appellants as the respondents were not aware of death of appellants no.1, 2, 4, 5 and 6. When the notice was sought to be served at the disputed premises in the year 2007, the heirs of appellant no.1 informed the bailiff about the death of the appellants. Therefore, the bailiff returned with the notice. Thereafter, the respondents amended the execution application to implead the heirs of appellant no.1 thereto and served the same again in August, 2008. This according to the respondents would indicate the knowledge of heir of appellant no.1, who is the real applicant in the present application, of dismissal of the appeal in the year 2007 itself. The application as filed does not contain any explanation for inaction from the year 2007 till 23.09.2010 when the application came to be filed by appellant no.3. It has * 7 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 been contended that the appellants had taken immediate steps for restoration by filing Civil Application bearing No. 5458 of 2008 on 25.09.2008 itself. However, as that application was not maintainable, they were constrained to withdraw the same and file the present application. 6. Perusal of the application shows that its does not even refer to the extent of delay in applying for restoration. Prayer (a) of the application is merely for condonation of delay in taking out the Civil Application. In the absence of the specific knowledge of the extent of delay, it would be impossible to offer any explanation therefor much less satisfactory. The application is seen to solely proceed on the knowledge of dismissal of the appeal in the month of August, 2008 by appellant no.3. Filing of the earlier applications has not been set out as the reason for the delay. In any case, in the facts and circumstances of the case, filing of Civil Application No. 5458 of 2008 by the heir of appellant no.1 cannot be of any assistance to the appellant no.3 * 8 * C.A. 3564.2010 in F.A.937.1985 20.10.2010 because that application had not been filed by him. In all probability, appellant no.3 was not even aware of filing of that application. The reason for that is not far to seek. Appellant no.3 is neither interested in the subject matter of the dispute nor is connected to it in any way, having shifted from the disputed premises long back. Another circumstance going against the constituted attorney and appellant no.3 in this respect is that the power of attorney relied upon is dated 15.07.2010 and not of any date prior to 25.09.2008. Consequently, the application as filed contains no explanation whatsoever for condonation of delay in filing the application. Thus, since there is no cause whatsoever made out for condonation of the delay. The Civil application is dismissed. [Smt. R.P. SondurBaldota, J]