1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3429 OF 2010 (Anilkumar Maroti Sakdeo & Ors. vs. Mohd. Inamul Haque Mohd. Nizamul Haque & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 07, 2010. Heard Shri Gaikwad, learned counsel for the petitioners, Shri Sohoni, learned counsel for respondent No. 1 and Shri Deshpande, learned counsel for respondent No. 2. The present petitioners filed MCA on 11.12.2000 for re-admission of MCA No. 39 of 1989. That MCA was filed by their deceased grand mother Bhagirathibai, who expired in 1991. Her legal heirs were not brought on record and the MCA was then dismissed in 1994. Against this order, thereafter i.e. on 11.12.2000, legal heirs filed present proceedings. By impugned order dated 14.10.2009, those proceedings are dismissed solely on the ground that the petitioners did not file separate application for condonation of delay. The judgment of the Hon'ble Apex Court in the case of K. Rudrappa vs. Shivappa, reported at AIR 2004 SC 4346, has been distinguished on the ground that there the applicant had no knowledge of pending 2 proceedings. Shri Gaikwad, learned counsel has urged that here also the petitioners had no knowledge of pendency of MCA No. 39 of 1989. He further states that the applicants (petitioners) are residing at Aurangabad and in May 2000 when they visited the suit spot, they found some construction going on and after making enquiry, the proceedings were filed. According to Shri Gaikwad, learned counsel, all these facts are already on record. He further states that a preliminary objection was raised and it was replied by the petitioners on 25.03.2001 and in that reply by way of abundant precaution, a request to condone delay, if any, was specifically made. The learned counsel states that the trial Court has taken too technical view of the matter. Shri Deshpande and Shri Sohoni, learned counsel for the respective parties have strongly opposed the petition. According to them, this is nothing but harassment of the respondents. They pointed out that Bhagirathibai had a son by name Maroti and that Maroti had in 1985 filed a suit in relation to subject matter showing his independent entitlement to it. That suit was not prosecuted and dismissed in 1989. The present petitioners who claimed through Maroti, therefore, cannot have any right to suit property as their rights are already crystallized in 1989. The next contention is, the decree is already executed and the respondents have taken possession. In this situation, both the learned 3 counsel state that if after the period of 16 years, this Court is going to show any indulgence in the matter, a serious and irreparable loss will be caused to the respondents who have prosecuted their remedy in accordance with law. According to them, as the petitioners are negligent, the view taken by the trial Court does not call for any interference. As already stated above, the impugned order rejects the prayer of the petitioners to re-admit MCA No. 39 of 1989 because there is no separate application for condonation of delay. The grievance of the petitioners that they are residing at Aurangabad and in May 2000 they learnt about the construction activities undertaken by somebody is rejected in para 12 by observing that “it is not believable”. The importance has been given to pursis filed by the learned counsel on behalf of Bhagirathibai in MCA No. 39 of 1989 whereby said counsel intimated her death and perhaps also stated that her legal heirs were not contacting him. The inference drawn from these events has been used to reject the knowledge allegedly obtained by the petitioners in 2000. In view of this finding, the absence of application for condonation of delay has been found fatal. As the fact that the petitioners got knowledge in May 2000 is already pleaded and in reply to preliminary objection, a request to condone delay, if any, was made, the trial Court could not have given much importance to the absence of the application for 4 condonation of delay. The petitioners have filed their application on 11.12.2000 i.e. more than 9½ years back. In this situation, without observing anything on merits, I am inclined to permit them an opportunity to move appropriate application for condonation of delay in the light of facts already on record. The application can be moved by them within a period of six weeks from today and if such an application is moved, the District Judge – 1, Warora, shall consider the prayers therein afresh without getting influenced by any observations made in the impugned order dated 14.10.2009 passed in MCA No. 3 of 2008. Only for that purpose, the said order is quashed and set aside. If such an application is moved within six weeks, the Court shall proceed to decide it as early as possible and in any case by 28th February 2011. The parties are directed to appear before the Court of District Judge – 1, Warora, on 12th October 2010 and to abide by its further directions in the mater. Writ Petition is disposed of. Rule is made absolute accordingly. No order as to costs. JUDGE *GS.