1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3085 OF 2003 Shri Gopal Shankar Mhatre, .. Petitioner/ Defendant no.1 Vs Gulab Barku Bhoir and 27 Ors .. Respondents\ Plaintiffs Ms.Gauri Godse, Advocate for the petitioner-original defendant no.1. Mr. K.P.Shreejith i/b M/s Shreeji & Lal for respondent nos 1 to 27. Shri Vinod Tayde, for respondent no.28. CORAM : D.B.BHOSALE, J. DATE : 06/08/2009 PC: 1. Heard learned counsel for the parties. 2. This petition is directed against an order dated 28.1.2003 passed by the Addl. District Judge, Kalyan, in Civil Misc. Application No.45 of 2002, seeking condonation of 202 days delay in filing the appeal against the Judgment and decree in Regular Civil Suit No.106 of 1991. By the impugned order, the application seeking condonation of delay came to be rejected. T 2 3. The petitioner is original defendant no.1. The respondents-plaintiffs instituted Regular Civil Suit No.106 of 1991 for declaration that they are owners of the suit land and that the sale deed dated 28.4.1971 executed by Balu Ambo Bhoir and his four sons in favour of petitioner-defendant no.1 is bad in law and not binding on the plaintiffs. The respondents- plaintiffs also prayed for permanent injunction restraining petitioner-defendant no.1 from making construction in the suit land. They also prayed for mandatory injunction seeking direction to defendant no.1 to remove construction material and the construction carried out by them. It appears that during pendency of the suit, the application filed by the respondents- plaintiffs for interim injunction was rejected by the trial court. They carried the matter to this court in Writ Petition No.3490 of 1992 in which an ad-interim injunction was granted by this court and it was confirmed while disposing of the writ petition on 4.12.2000. There was no stay to the further proceedings before the trial Court and hence the suit proceeded and it came to be disposed of by the Judgment and order dated 15.12.2001. 4. Admittedly, a summons was issued and served on the petitioner-defendant no.1 in the suit. Defendant no.1 engaged a lawyer and, through him, filed a written statement. The 3 advocate for the petitioner was present during trial and, admittedly, he filed “no evidence” purshis on behalf of the petitioner, perhaps in view of the fact that despite repeated intimations to the petitioner, he did not turn up. 5. I have perused Civil Misc. Application No.45 of 2002, the impugned order dated 28.1.2003 and the other material placed before the court. The applicant, in the application for condonation of delay, in paragraphs 3, 4 and 5, stated thus: “3) The Appellant states that he is an illiterate and uneducated person, he is not conversant with the proceedings of the court. During the tendency of the suit, i.e. R. C .S. No. 106/91 the Appeal against the order of appointment of Receiver was pending in the Hon’ble High Court. The appellant was under the belief that the proceedings in the High Court is still pending and, therefore, the applicant was not attending the lower court for a considerable long time. The appellant was not aware about the dates of R.C.S.No.106 of 91 in lower Court. 4) On or about 16.7.2002, the respondents nos 1 to 27 came on the suit lands and started saying that the lands are of their ownership and the suit has been decided in their favour and they have applied to the Talathi for re-entering their names to the suit lands. 5) The applicant thereafter made the inquiry in the court as well as with his Advocate and on inquiry he came to know that the suit was already decided on 15.12.2001. The applicant 4 on the very same day i.e. On 16.7.2002 filed the application for certified copies. The copies were received on 26.7.2002. The applicant handed over the copies to his Advocate and after reading and going through all the papers, the Appeal is prepared and filed today.” In view of the statements made in the application, so also in the writ petition stating that the petitioner-defendant no.1 was not present when the suit proceeded and decided by the trial court, the respondents-plaintiffs took out Criminal Contempt Petition No.11 of 2004 in the instant writ petition. In the contempt petition, the advocate for the petitioner filed an affidavit dated 10.12.2004. In paragraph nos 1 and 2 of the affidavit, the advocate for the petitioner stated thus : “1.) I say that I was appearing on behalf of the respondent no.1/Gopal Shankar Mhatre in Regular Civil Suit No.106 of 1991. I say that after Writ Petition No.3490 of 1992 was filed in this Hon’ble Court and Interim order was passed in the said writ petition, in the month of August, 1991, Gopal Mhatre had never contacted me. 2.) I say that since Gopal Mhatre did not contact me I had sent him intimation regarding the suit being fixed for hearing. However, he neither contacted me nor any time attended the Court at Kalyan. I say that on the basis of the documents on record I proceeded in the suit on behalf of Gopal Shankar Mhatre in his absence and completed the hearing of the suit. I say that after September,1992, Gopal Mhatre did not attend any date in the Kalyan Court. I say that the entries made in the ROZNAMA after September,1992, recording that “BOTH THE 5 PARTIES ARE PRESENT” are incorrect.” 6. It appears that in the contempt petition, the respondents- plaintiffs relied upon the Rozanama to show that not only the advocate for the petitioner was present in the court when the trial proceeded but even the petitioner himself was also present during the trial. The contempt petition is still pending in this court. 7. The petitioner sought condonation of delay on two grounds. Firstly, he has stated that the order appointing Court Receiver in Regular Civil Suit No.106 of 1991 was challenged in appeal before this Court and that he was under the belief that the appeal was pending in this Court and, therefore, he did not attend the trial court for long time, i.e, since 1992 till the suit was disposed of on 15.12.2001. It is further stated that he did not know the dates of hearing before the trail Court. Secondly, he has stated that he came to know about the Judgment and decree only when the respondents-plaintiffs went to the suit land and asserted their ownership on the basis of the Judgment. Immediately thereafter, the petitioner claims, he made inquiries and approached the appellate court in appeal with the application for condonation of delay. 6 8. Ms Godse, learned counsel for the petitioner, at the outset, submitted that the petitioner did not attend the trial court in view of the pendency of the proceedings in this court and he was not aware about the dates given by the trial court in the suit. She then submitted that the petitioner was prompt enough to file the application for condonation of delay immediately after he came to know about the Judgment and decree, as stated in paragraph 5 of the application. She further submitted that the explanation offered by the petitioner for seeking condonation of delay is not only satisfactory but, in the facts of the present case, also acceptable. She submitted that if the impugned order is not set aside that would result in foreclosing the petitioner from putting forth his case. In support of her contentions, she placed reliance upon the Judgment of the Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123. 9. The cause shown in the application for seeking condonation of delay that an appeal was pending in this Court against the order appointing Court Receiver, as mentioned in paragraph 3 of the application for condonation of delay, itself, was false. Admittedly, no such appeal was either filed or 7 pending in this Court. Writ Petition No.3490 of 1992 against the order rejecting the prayer for interim injunction was pending in this court. However, there was no stay granted by this Court to the further proceedings. Similarly, the statement made in the application that he was not aware of the dates given by the trial Court, is also false. The affidavit dated 10.12.2004 filed by the advocate for the petitioner in Criminal Contempt Petition No.11 of 2004 shows that after 1992 the petitioner never contacted him. It further shows that the advocate had sent several intimations informing the dates to the petitioner, however, he did not attend the court. I do not wish to enter into a controversy whether the notings in the Roznama stating that the petitioner was present in the court at the time of hearing of the suit in view of the pendency of the criminal contempt petition in this court. The Judgment relied upon by Ms Godse, learned counsel for the petitioner, in the N. Balakrishnan’s case (supra) would not apply to the facts of the present case, particularly in view of the false statements made in the application for seeking condonation of delay. The respondents-plaintiffs have been fighting this litigation since 1991. They cannot be made to suffer further. The petitioner claims that he purchased the suit land by registered sale deed from Balu Ambo Bhoir and his four sons. That being so, it is open to the petitioner to seek 8 possession of the property of their share by filing a suit for partition, in view of the declaration that the sale deed is not binding on the respondents-plaintiffs. Having considered overall facts and circumstances of the case, in my opinion, the petitioner cannot be stated to have shown sufficient cause for condonation of delay and hence the court below has rightly rejected the application, which deserve no interference by this Court in extremely limited jurisdiction under Article 227 of the Constitution of India. Hence, the writ petition is dismissed. As prayed by Ms Godse, learned counsel for the petitioner, the ad- interim order, that was granted pending hearing of this petition for admission, shall remain operative for a further period of four weeks from today. (D. B. Bhosale, J.) 9