(1) Civil Application No. 966 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Civil Application No. 966 of 2011 (In Review Application Stamp No. 37995/2010) (In Civil Revision Application No. 81 of 2008) Murari s/o. Purushottam Tapaswi, Age : - , Occupation : Service, Through GPA Sadanand s/o. Purushottam Tapaswi, Age : 65 years, Occupation : Business, .. Applicant R/o. Tilak Path, Ajabnagar, [Original plaintiff Aurangabad. (landlord)] versus Himayat Ali s/o. Ashraf Ali Jaidi, Age : 56 years, Occupation : Business, .. Respondent R/o. behind hotel Empire, [Original defendant Deodi Bazar, Aurangabad. (tenant)] ....................... Mr. Shailendra S. Kulkarni, Advocate, for the applicant. Mr. P.F. Patni, Advocate, for the respondent. ........................ (2) Civil Application No. 966 of 2011 CORAM : SHRIHARI P. DAVARE, J. DATE : 4TH OCTOBER 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant for condonation of delay of 508 days in filing the accompanying Review Petition. 3. It is the contention of the applicant that he is a General Power of Attorney holder of his real brother who is the landlord of the suit property. The respondent is the tenant therein. The applicant has filed ARC proceedings before Additional Rent Controller against the respondent / tenant. The said proceedings was allowed. The respondent / tenant challenged the said judgment and order by filing appeal before Principal District Judge at Aurangabad. The said respondent's appeal was allowed by judgment and order passed by the said court, and finding given by the Rent Controller was set aside. Being aggrieved by the said judgment and order, present applicant filed Civil Revision Application before this Court. However, upon hearing both the parties, this Court dismissed (3) Civil Application No. 966 of 2011 said Civil Revision Application at admission stage on 1st July 2009. Hence, the applicant has filed accompanying Review Petition against the judgment and order dated 1st July 2009. However, while filing the said Revision Petition, delay of about 508 days was caused. Hence, the applicant has preferred the present Application for the said delay condonation. 4. The applicant contends that after passing the said judgment and order dated 1st July 2009, the applicant applied for certified copy thereof on 21st July 2009, which was received by the applicant on 4th August 2009. Thereafter, it is the contention of the applicant, that efforts were made for amicable settlement between the parties by two respectable persons in the society and meeting was held in the chamber of Dr. Anil Patil in the presence of Advocate Shri Sharadrao Ghavane. In the said meeting both have suggested for outright purchase of the property for an amount of Rs. 4.25 Lakhs. The amount was agreed in principle in the said meeting, but thereafter no steps were taken by the respondent herein to execute necessary documents. Hence, the applicant sent one notice cum letter to the respondent on 24th November 2009 by RPAD and UPC, requesting either to execute sale deed or leave or license agreement on 30th November 2009. However, the respondent refused to accept the said notice by RPAD, whereas he received the notice sent by UPC. Upon (4) Civil Application No. 966 of 2011 receipt of the said letter, the respondent contacted on phone to the applicant's Advocate, but till today, no steps have been taken by him. 5. It is also contention of the applicant, that he is a senior citizen, and due to ill health, he is under the advice and treatment of his doctor, and therefore, he could not contact his Advocate within the limitation period, and therefore, delay was caused in filing aforesaid Review Petition, which may be condoned in the interest of justice. 6. The respondent has filed affidavit in reply and denied the averments and contentions made by the applicant in the present Application specifically unless admitted therein. The respondent submits that there is delay of 508 days in filing the accompanying Review Petition and reasons put forth by the applicant for condonation of the said delay are not sufficient grounds to condone the delay. The requirement of law is that there should be sufficient cause, and bona fide cause is not the sufficient cause. The respondent has categorically denied the efforts of amicable settlement, as averred by the applicant in the present Application. It is submitted that there is about 11 months delay and no explanation has been given for the said delay. It is further submitted that after decision of the case, the parties sit (5) Civil Application No. 966 of 2011 together for compromise is unnatural and does not constitute sufficient cause within the meaning of Section 5 of the Limitation Act. It is also submitted that the proceedings between the parties has become final and somewhere it should be given full stop, else it has no end, and certain rights have been accrued to the present respondent which cannot be taken away in this manner. 7. As regards ground of ill health of the applicant, same has been denied by the respondent, submitting that no medical certificate has been produced to support the same. Even it is submitted that no ailment has been put forth by which the applicant was allegedly suffering. Accordingly, it is submitted that the applicant is not a diligent person, and hence, delay cannot be condoned as prayed for by the applicant, and urged that the present Application be dismissed. 8. In the context of alleged negotiations of settlement / compromise, learned Counsel for the respondent has relied upon judicial pronouncement of learned Single Judge of this Court, in the case of Shri Victor Albuquerque Vs. Saraswat Cooperative Bank Ltd. and others, reported at 1998(3) Bom.C.R. 93, wherein it is held that "condonation of 182 days delay sought on the ground that talks of compromise were going on and only after (6) Civil Application No. 966 of 2011 they failed appeal is filed as per advice of the Counsel, but the so called talks for compromise having been initiated after limitation had expired are of no avail, and party who seeks condonation has to give sufficient cause and be vigilant of his rights." 9. After considering the rival submissions advanced by the learned Counsel for the parties, admittedly, the impugned order was passed in Civil Revision Application No. 81/2008 on 1st July 2009. Thereafter, it is submitted that the applicant applied for certified copy of the said order on 21st July 2009, which was received by him on 4th August 2009. Thus, even having glance at the said dates, it is apparent that the applicant applied for the said certified copy after delay of 20 days and no explanation has been given by the applicant in respect of the said delay of 20 days. Thereafter, it is submitted that the accompanying Review Petition was filed on 21st December 2010 i.e. almost after 14 months after receipt of certified copy of the impugned order. 10. As regards the said delay, the applicant has canvassed twofold grounds for condonation of the said delay; firstly, the talks of compromise / settlement were under progress between the parties, and secondly, ill health of the applicant. (7) Civil Application No. 966 of 2011 11. As regards the first ground in respect of negotiations of compromise / settlement between the parties, with the intervention of two respectable persons in the society, namely, Dr. Anil Patil and Advocate Sharadrao Ghavane, it is pertinent to note that the applicant has not filed affidavits of the said respectable persons to substantiate his contention that any negotiations of compromise / settlement between the applicant and the respondent were in progress, that too, with the intervention and assistance of the said two respectable persons. Moreover, no particulars of said negotiations of compromise / settlement have been given by the applicant in the present Application, such as, when the said talks were initiated, on which dates meetings of the said compromise / settlement were conducted, and therefore, the ground put forth by the applicant in respect of negotiations of compromise / settlement between the parties has not been substantiated by the applicant. In the said context, reliance placed by the learned Counsel for the respondent, in the case of Shri Victor Albuquerque Vs. Saraswat Cooperative Bank Ltd. and others (supra), is suitable and useful. 12. Besides, it is also pertinent to note that as per contention of the applicant, he issued one notice to the respondent on 24th November 2009, requesting him to either execute sale deed or leave or license agreement on 30th (8) Civil Application No. 966 of 2011 November 2009, and allegedly said notice was received by the respondent by UPC, but admittedly, respondent did not respond to the said notice even after 30th November 2009, and hence, nothing prevented the applicant to file Review Petition immediately thereafter, and no reasons / explanation have been given by the applicant for the delay from 30th November 2009 till 21st December 2010 i.e. date of filing of the Review Petition, and therefore, said ground canvassed by the applicant for condonation of delay cannot be considered as sufficient cause for the delay condonation. 13. Coming to the second ground of the applicant for condonation of delay i.e. the applicant is a senior citizen and due to ill health, he was under the advice and treatment of his doctor, and he was unable to contact his Advocate within the period of limitation. However, in the said context also, the applicant has not put forth name of the ailment by which he was suffering and even has not given the particulars thereof, as well as, he has not produced any medical certificate to substantiate the said contention. Pertinently, the other details, such as, the date / period since when the applicant was suffering from the said ailment and name of the doctor under whose medical treatment the applicant was, also have not been given, and therefore, the said ground put forth by the applicant for condonation of delay (9) Civil Application No. 966 of 2011 appears to be vague and ambiguous, and therefore, cannot be construed as sufficient ground / cause therefor. 14. Moreover, sight cannot be lost of the important factor that the applicant has failed to account for the delay caused in filing the present Application and the said inaction sustains fatal blow to his case. 15. Besides, having considered the impugned order dated 1st July 2009, there does not appear to be any apparent error / lacuna therein. In fact, as observed in paragraph 15 of the said impugned order, there was patent lacuna in the pleadings of the petitioner / landlord in the very plaint, in respect of the alleged ground of change of user of the suit premises, and therefore, the evidence adduced / produced in the said proceedings in respect of the said ground could not be considered due to lack of pleading in that respect, and the said very lacuna hampered case of the petitioner / landlord. Apart from that, it is reported that the very lease agreement dated 4-12-1980, between the applicant and the respondent, which is allegedly basis and foundation of the applicant's case, has not been produced by the applicant / landlord in the eviction proceedings, and the said inaction goes to the root of the matter and suffers the case of the applicant. (10) Civil Application No. 966 of 2011 16. In the circumstances, there is no substance in the present Civil Application, and the same is devoid of any merits, and therefore, same stands dismissed, and consequently, registration of Review Application bearing Stamp No. 37955/2010 is refused. ( SHRIHARI P. DAVARE ) JUDGE ............................. bgp/ca966