1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11084 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 11084 OF 2010 *** 1. Heard Advocate Mr. Shinde for Petitioner, Advocate Mr. Gawali for Respondent Nos.1 to 5 and learned A.G.P. for Respondent no.9. Respondent Nos. 6 and 8 are already shown as deceased in array of Respondents. 2. After hearing respective counsel and as this Court has issued notice for final disposal, I am satisfied that in order to find out whether there is just and sufficient reason to condone the delay, first authority viz. Sub Divisional Officer ought to have recorded a finding that dismissal of R.T.S. Appeal No.4 of 1990 on 30th September, 1993 was not within knowledge of present petitioner i.e. Appellant before Sub Divisional Officer. The Sub Divisional Officer has vide order dated 26th November, 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11084 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 2009 condoned delay without recording his finding. This order was then questioned by Respondents by filing a revision before Maharashtra Revenue Tribunal. Maharashtra Revenue Tribunal had no occasion to call for records from the office of Sub Divisional Officer because of consent given by rival parties to argue the revision in absence of records. In absence of records, Maharashtra Revenue Tribunal has in paragraph 9 found it difficult to believe that intimation of decision in R.T.S. Appeal NO.4 of 1990 was not sent to parties or to their respective Advocate. In addition, it also found that application for condonation of delay moved by present petitioner before Sub Divisional Officer was not supported by any affidavit. 3. Before this Court attempt is to demonstrate that there was an affidavit supporting prayer for condonation of delay 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11084 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. and Sub Divisional Officer's order expressly refers to that affidavit. But then I find that order of Sub Divisional Officer does not record a specific finding on disputed question whether the dismissal on 30th September, 1993 was communicated to petitioner or not. The Respondent before Sub Divisional Officer had not accepted the story of no communication and had raised certain vital defence about it. Those defences are also not looked into. 4. A presumption that ordinarily the decision ought to have been communicated is not very decisive in such matters. Mere sending of communication also may not be helpful. Maharashtra Revenue Tribunal ought to have, therefore, called for records before making such observations but then as I find that Sub Divisional Officer has not recorded a basic finding it would be appropriate to 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11084 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. restore the application for condonation of delay moved by present petitioner back to the file of Sub Divisional Officer. For that purpose, order dated 26th November, 2009 passed by Sub Divisional Officer in Delay condonation application NO.15 of 2008 is quashed and set aside. That application is restored for its fresh consideration in accordance with law, after extending parties an opportunity to address on it. Needless to mention that the judgment dated 2nd November, 2010 delivered by Maharashtra Revenue Tribunal in Case No.9-B-2010-AN also falls to ground as the order of Sub Divisional Officer is quashed and set aside. 5. Sub Divisional Officer is directed to decide the proceeding in application No.15 of 2008 as early as possible and in any case within a period of three months after parties appear before him. Parties are directed to 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11084 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. appear before that authority on 18th April, 2011 and to abide by its further instructions in the matter. 6. Rule is made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:22/03/2011. ans/11084