1 9-cas-332-2003.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.332 OF 2003 IN SECOND APPEAL (ST)NO.2422 OF 2002 The State of Maharashtra & Another .. Applicants V/s. Smt. Parvatibai D. Kadam (since deceased) through her Legal Heirs & Others .. Respondents. Mr. Mhaispurkar, AGP for Applicants. Mr. S. Chogule i/b. Mr. Uday Warunjikar, for Respondent Nos.2 and 4A. CORAM : G.S.GODBOLE, J. DATE : 18th AUGUST, 2011. P.C.: 1 The office remark shows that this Civil Application stands dismissed as against Respondent No.3- Bhimrao Dhondiram Kadam by conditional order dated 26th April, 2010, passed by the Registrar (Judl.-I). Request is made for grant of time to take steps. However, it is seen from the record that Civil Application No.397 of 2007 filed by the State 2 9-cas-332-2003.sxw Government for bringing heirs of deceased Respondent- Smt. Parvatibai Dhondirak Kadam, had been allowed on 28th December, 2007, after recording that the proposed Legal Heirs (including Respondent No.3 in this Civil Application) are served. Thus, Respondent No.3 had been served, may be in the other Civil Application. Apart from this, the other heirs of the deceased Respondent who was the original sole Plaintiff and Appellant in First Appeal filed in the District Court respectively, are already served. Hence, without further delaying the hearing of this Civil Application which is pending for more than nine years, the application is required to heard on merits as it is. 2 This application is filed for condonation of delay in the Second Appeal filed by the State of Maharashtra. Perusal of this application shows that the entire application is drafted as if it is an application for condonation of delay in filing a First Appeal which is also clear from the prayers made in the Civil Application. In fact, in paragraph 3 of the Civil Application, a reference has been made to the “ Judgment and Award passed by the Reference Court.” It is thus clear that without any application of mind and mechanically the contents of a Civil Application which is normally filed in the First Appeal filed under Section 54 of the Land Acquisition Act, 1984 have been copied and averments to that effect are made. 3 9-cas-332-2003.sxw 3 The reasons given in the Civil Application are vague and there is virtually no explanation for the delay between 14th September, 2001 till 11th December, 2001. Apart from this, as stated above, the Civil Application contains factually incorrect statements to the effect that the Respondents have received compensation determined by the Land Acquisition Officer, where as the suit was filed for declaration that notice issued under Section 59 of the Maharashtra Land Revenue Code, 1966 is illegal. Thus, neither the Application is properly drafted, nor sufficient reasons are indicated. In such a situation, the normal course would be to dismiss the Civil Application, even though, this Court is liberal in condoning the delay. However, with a view to ensure that the Government should not suffer and the case can be heard on merits at the time of admission and on account of the fact that the duration of delay is only of 40 days; purely by way of indulgence, Civil Application is allowed, subject to the condition of payment of Rs.10,000/- as costs to the Respondent. The payment of costs will be the condition precedent and costs shall be paid within four weeks, failing which, Civil Application will stands dismissed without further reference to the Court. 4 The learned Advocate for the Applicants is directed to amend at least the prayer clause of the Civil Application so as to correct the record. 4 9-cas-332-2003.sxw 5 The costs may either be paid to the Advocate for the Respondent by way of crossed cheque account payee Cheque/DD/Pay Order or be deposited in this Court with the praecipe and intimation to the Advocate for the Respondent within four weeks and that will be treated as sufficient compliance. 6 After the cost is paid as aforesaid, office to examine the Second Appeal and after removing all office objections, the Second Appeal shall be listed for admission as per C.M.I.S. Programme. 7 The costs awarded hereby shall be costs thrown irrespective of final out come of the Appeal and even if, Appellants succeed in the Appeal, the Applicants will not be entitled to claim any refund in respect of the said costs. (G.S.GODBOLE, J.)