1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 13483 OF 2010 IN REVIEW APPLICATION ST.NO.29194 OF 2010 IN SECOND APPEAL NO.312 OF 2009 Indirabai W/o Baburao Dhangare, Age: 65 years, Occ: Agriculture, R/o. Fulambri,Taluka Fulambri, District Aurangabad. ...APPLICANT VERSUS 1. Sundrabai W/o Baburao Dhongare, Age: 62 years, Occ: Agriculture, R/o. Fulambri,Taluka Fulambri, District Aurangabad. And another ...RESPONDENTS ... Shri. Sandeep S.Deshmukh, Advocate for applicant. Shri. P.F.Patni,Advocate for respondent No.1. Shri. H.D.Deshmukh, Advocate for respondent Nos.2 ... CORAM: K.K. TATED, J. DATE : 19TH OCTOBER,2010 ORAL ORDER : 1. Heard learned counsel for the parties. 2. This Civil application is preferred by original appellant for condonation of delay of 419 days in preferring the Review Petition in Second 2 Appeal No. 312 of 2009. 3. The applicant states that on 4th May, 2009 she preferred second Appeal No. 312 of 2009 in this Court challenging the judgment and decree dated 19th March, 2009 passed in Regular Civil Appeal No. 211 of 2007. The said Second Appeal was dismissed on 8th July, 2009 holding that there was no substantial question of law involved. 4. Being aggrieved by the order dated 8th July, 2009 passed by this Court, the applicant preferred Special Leave Petition NO. 27908 of 2009 in the Apex Court, on 19th October, 2009. In the Said Special Leave Petition, the Apex Court passed an order on 11th November, 2009 directing the parties to maintain status quo and issued notices to other side. 5. After hearing both the sides, the Apex Court passed order on 20th August, 2010 whereby dismissed the Special Leave Petition. The order passed by 3 the Apex Court reads thus: “Heard learned counsel for the parties. We find no merit in the special leave petition. The Special Leave petition is dismissed accordingly.” . Thereafter the applicant preferred present Review Petition in this Court on 29th September, 2010. 6. It is the case of the applicant that the delay in preferring Review Petition is not deliberate or intentional, the same is caused due to pendency of Special Leave Petition, till 20th August, 2010. She further states that if application for codonation of delay is not granted grave harm and prejudice will be caused to her. She further states that, she has good chance of success in the Review Petition. 7. On these facts and circumstances, Mr.Deshmukh learned counsel appearing on behalf of the applicant submits that the delay be condoned in 4 the interest of justice. He further submits that as soon as the Apex Court decided the Special leave Petition on 20th August, 2010, the applicant immediately preferred present Review Petition on 27th September, 2010 i.e. within 40 days. He further submits that the applicant is the old lady of 65 years, residing in a village and therefore, there is delay in preferring present Review Petition. 8. On the other hand, Mr. Patni learned Counsel appearing on behalf of respondents vehemently opposed the present Civil Application on the ground that the applicant failed to disclose any explanation for condonation of delay. He further submits that because of delay, though, respondents succeeded in both Courts, they are not getting fruits of the decree. He further submits that the applicant is intentionally prolonging the litigation so that she can enjoy the property which is in her possession. 9. He further submits that pendency of Special 5 Leave Petition in the Apex Court is not a ground for condonation of delay, the applicant could very well file Review Petition during the pendency of Special Leave Petition. Therefore, present application needs to be dismissed with costs. 10. Mr. Patni, learned Counsel appearing for respondents raised objection about maintainability of the Review Petition. He submits that the applicant already preferred Special leave Petition against the order passed by this Court in Second Appeal, therefore, the applicant is not entitled to file Review under Order 47 Rule 1 of the Code of Civil Procedure. He relied on the Judgment in the matter of Abbai Maligai Partnership Firm and another Vs. K. Santhakumaran and others reported in AIR 1999 Supreme Court 1486. In that Case, the Apex Court held that High Court had no power to review its own order, which was the subject matter of Special Leave Petition. Entertainment of Review Petition by High Court against the same order after dismissal of Special Leave Petition is 6 not maintainable. Though, while considering the Civil Application for condonation of delay, it is not necessary to hear the matter on merits, as the learned counsel for the respondents raised objection on that ground also is to be considered in this Civil Application. 11. On the other hand learned counsel appearing on behalf of applicant heavily relied on the judgment of Apex Court in the matter of Kunhayammed and others Vs. state of Kerala and another reported in (2000) 6 Supreme Court Cases, 359. In that case, the Apex Court held that effect of non speaking order of dismissal of Special Leave petition without anything more indicating grounds or reasons of its dismissal, must by necessary implication, be taken to be that Supreme Court had decided that it is not a fit case where Special Leave Petition should be granted. If the matter is not decided on merits then Court can entertain the Special Leave Petition. Head Note “D” reads thus: 7 “D. Constitution of India-Art.136- Effect of grant/dismissal of SLP- Dismissal at the stage of special leave by non-speaking order, held, does not constitute res judicata and does not culminate in merger of the impugned decision-Hence, would not by itself precluded the aggrieved party from seeking relief in writ jurisdiction or review jurisdiction of High Court-Merger- Doctrine of, when not applicable- Res judicata- Dismissal of SLP at the stage of grant of leave, held, does not constitute res-judicata so as to bar remedy under Art.226- Civil Procedure Code, 1908,S.11- Applicability to refusal of Special Leave under Article. 136.” 12. In view of the Apex Court Judgment in the matter of Kunhayammed and others Vs. state of Kerala and another cited supra I hold that the present review petition is maintainable. 13. Though, it is stated in the application that there is delay of 419 days in preferring the 8 present review petition, the applicant explained in her application that after order passed by this Court in Second Appeal she immediately preferred Special Leave Petition in the Apex Court. In the said Special Leave Petition the Apex Court issued notice to other side on 11th November, 2009. Thereafter, Special Leave Petition was dismissed on 20th August,2010. The applicant, thereafter, immediately filed present review petition within 40 days from the date of dismissal of Special Leave Petition. It is to be noted that Apex Court in the matter of N. Balakrishnan vs. M. Krishnamurthy (1998) 7 S.C.C. 123 held that the object of fixing time limit is not meant to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The Apex Court further held that Rules of limitation are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Para-11 of the said judgment reads 9 thus : "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to 10 litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." 14. Considering the averments in the Civil Application, affidavit in reply filed by the respondents and submissions advanced by the learned counsel for the parties I am of the opinion that the applicant has made out a case for condonation of delay. Therefore, Civil Application is allowed in terms of prayer clause [B], which read as as under: “[B] By an order of this Hon’ble Court, the delay of 419 days caused in filing the present Review Application in Second Appeal No. 312/2009 may kindly be condoned.” Sd/- [K.K. TATED, J.] MTK