1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1049 OF 2009 1) Ganesh s/o Narsingrao Trimukhe, Age-57 years, Occu:Service, R/o-Talaw Wes Udgir, Tq-Udgir, Dist-Latur 2) Ramdas s/o Narsingrao Trimukhe, Since deceased through his L.Rs 2/A) Vidhyabai Ramdas Trimukhe, Age-41 years, Occu:Household, 2/B) Sachin s/o Ramdas Trimukhe, Age-30 years, Occu:Business, 2/C) Nitim s/o Ramdas Trimukhe, Age-21 years, Occu: 2/D) Amol s/o Ramdas Trimukhe, Age-19 years, Occu:Education, All R/o- Sawe Wadi, Latur, Tq. & Dist-Latur. ...PPETITIONERS. VERSUS Shri Mahadeo & Shri Vaijenath Mandir, A Public Trust, Through its Trustees 1) Shivsharanappa Rachappa Chotkote, Age-75 years, Occu:Business, R/o-Chandra Nagar, Latur, Tq. & Dist-Latur. 2 2) Makarand s/o Bhausaheb @ Bhalchandra Sawe, Age37 years, Occu:Business, R/o-Sawe Wadi, Latur, Tq. & Dist-Latur. 3) Sambappa s/o Trimbakappa Girwalkar, Age-66 years, Occu:Advocate & Agri. R/o-Mitra Nagar, Latur, Tq. & Dist-Latur, 4) Manji Jodhabhai Rathod, Age-67 years, Occu:Contractor, R/o-Tilak Nagar, Latur, Tq. & Dist-Latur, 5) Shantvir s/o Gangadharappa Chaudhari, Age-53 years, Occu:Advocate, R/o-Latur, Tq. & Dist-Latur, 6) Shantanu Baburao Tathode, Age-55 years, Occu:Business, R/o-Sawe Wadi, Latur, Tq. & Dist-Latur. ...RESPONDENTS. ... Mr. C.R. Deshpande Advocate for Petitioners. Mr. S.V. Natu Advocate for Respondent Nos. 1 to 3, 5 and 6. ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 3RD AUGUST, 2009. JUDGMENT PRONOUNCED ON : 7TH AUGUST, 2009. JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter 3 is taken up for final hearing at the stage of admission. 2. Present Writ Petition under Article 227 of the Constitution of India filed by original Respondents in Misc. Application No.7 of 2008. A few facts of the present case are as under: . The Respondents herein filed Special Civil Suit No. 288 of 1997 for mandatory injunction for demolishing the illegal construction carried out on the property Survey No.203-A, the western side portion of 3 Acres admeasuring 12100 Square meter, C.T.S. No.4725 adjacent to Silver Jublee Road at Latur. It is the case of the Respondents that the Petitioners inspite of temporary injunction carried out construction and therefore they preferred Misc. Civil Application No.14 of 2000 under Order 39 Rule 2-A of the Code of Civil Procedure contending that the Respondents attempted to serve the order of status quo on the Petitioners but they avoided the service and after getting the knowledge of the order, the Petitioners continued the construction during the night by committing breach of the order. The said Misc. Application No.14 of 2000 was adjourned from time 4 to time and lastly on 26th November, 2007 came to be dismissed in default due to non appearance of Respondents on the said date for leading evidence. Thereafter the Respondents filed Misc. Application No.7 of 2008 on 1st January, 2008 for restoration of Misc. Application No.14 of 2000 on the ground that on 26th November, 2007 the Respondents' witness namely Shri Shantvir Chaudhari was unable to appear in the Court due to illness and thus it has been requested to restore the Misc. Application No.14 of 2000. In the said Application, Respondents in Para 5 stated that "The order under challenge is dated 26-11-2007 and this application is filed on 01.01.2008. There are period for getting copies of said order for 6 days, after excluding the period for getting copies, this application is within limitation." 3. The Respondents were under impression that the Application filed by them for restoration of Misc. Application No.14 of 2000 was within limitation. In the said Application, the Petitioners filed their reply dated 20th June, 2008 and contested the same on the 5 ground that the Respondents failed to produce on record medical certificate of the concerned witness along with application and also on the ground that the Application preferred by the Respondents for setting aside the dismissal order is hopelessly barred by limitation. After considering the submissions of both the parties, the IInd Joint Civil Judge, Senior Division, Latur, allowed the Misc. Application No.7 of 2008 on payment of cost of Rs.500/- and set aside the dismissal order dated 26th November, 2007 passed below Exhibit 1 in Misc. Application No.14 of 2000. 4. Being aggrieved by the said order dated 8th September, 2008, the Petitioners preferred present Writ Petition under Article 227 of the Constitution of India. 5. Learned counsel for the Petitioners submitted that the trial Court failed to consider that the application filed by the Respondents being Misc. Application No.7 of 2008 is barred by limitation and therefore without any application for condonation of delay the Court has no power to allow the same. He submitted that the Respondents specifically stated in Para 5 of their Misc. 6 Application No.7 of 2008 that they applied for certified copies of the order dated 26th November, 2007 and thereafter they filed application on 1st January, 2008 and that six days period taken by the office of the trial Court for providing certified copy of the order and after excluding the period for getting certified copy, the application filed by the Respondents is within limitation. Learned counsel for the Petitioner submitted that under Section 12 of the Limitation Act, Respondents are not entitled to the benefit of excluding the period required for obtaining certified copies of the order, therefore the application filed by the Respondents for setting aside the dismissal order was barred by limitation and as the Respondents failed to file any application for condonation of delay, the impugned order passed by the trial Court on 8th September, 2008 is liable to be set aside. In support of his contention, the learned counsel for the Petitioners relied on the Judgment in the matter of Ballumal A. Jaising vs. M/s. J.J. Builders and others, reported in [2003 (3) Mh. L.J. Page No.238]. In this case the High Court held that in the absence of proper application to condone the delay, Court has no jurisdiction to condone the delay. In para- 7 4, the High Court observed as under: "It is undoubtedly true that an application under section 5 of the Indian Limitation Act would be filed and taking a liberal view of the matter as is desired by the Supreme Court of India in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987 SC 1353 that can be done only after an application under section 5 for that purpose is moved. The jurisdiction of the Court itself is barred and that Court is prevented from taking cognizance of any matter if it is barred by limitation. It can get the jurisdiction only if an applications to that effect is made. In the absence of an application, the Court will have no jurisdictions to take up the matter and consequently, will have no power to condone the delay. I am fortified in the view I am taking by a judgment of the Supreme Court in Ramesh Chand Sharma vs. Udham Singh Kamal and others reported in AIR 1999 SC 38337 and in Secretary to Government of Indian and others vs. Shivram Mahadu Gaikwad reported in 1995 Supp. (3) SCC 231 8 wherein it has been observed by the Supreme Court of India that the power to condone the delay exists in the Court, the power cannot be exercised unless there is a prayer to do so by a proper application for that purpose." 6. On the other hand, learned counsel appearing on behalf of the Respondents submitted that the Respondents were under bona-fide mistake that Section 12 of the Limitation Act is applicable in the present case and therefore it remained on their part to file application for condonation of delay. He submitted that the trial Court considered the matter on merits and decided Misc. Application No.7 of 2008 by order dated 8th September, 2008 which is well reasoned order. He further submitted that the Respondents' witness i.e. applicant No.5 Shantvir Chaudhari who was to lead evidence on their behalf on the date fixed, was unable to appear before the Court due to illness and for that purpose the Respondents already placed on record a medical certificate issued by the Doctor. Learned counsel for the Respondents further submitted that the trial Court considering the medical certificate and merits of the matter, allowed their application for restoration of 9 Misc. Application No.14 of 2000. He further submitted that the Apex Court in the matter of Commissioner of Sales Tax U.P. vs. M/s Madanlal Dan and Sons, Bareily, reported in AIR 1977 S.C. Page 523 held that time spent for obtaining copy of order can be excluded under Section 12 (2) of the Limitation Act. He further relied on the Judgment in the matter of Shri Tularam Govinda Bhogare vs. State of Maharashtra and another, reported in 2004 (3) All M.R. Page 167 in which the High Court held that technicalities of procedure should not be permitted to hamper the stream of justice. In view of these Authorities, learned counsel for the Respondents submitted that the above Writ Petition is liable to be dismissed. 7. It is absolutely clear from the pleadings of both the parties that application filed by Respondents being Misc. Application No.7 of 2008 is barred by limitation by six days. Inspite of that the Respondents have not made any prayer in their application for condonation of six days delay. The plea taken by the Respondents that under Section 12 of the Limitation Act the period of getting certified copies of the order dated 26th 10 November, 2007 to be excluded at the time of calculating the limitation and therefore their application is within time is not sustainable. Plain reading of Section 12 of the Limitation Act shows that the same is not applicable in the present case. Inspite of that the trial court condoned the delay and allowed the Respondents' Misc. Application No.7 of 2008. It is crystal clear from the Judgment in the matter of Ballumal A Jaising (supra) that in the absence of proper application to condone the delay, Court has no jurisdiction to consider the said application. Therefore, the order passed by the trial Court is without jurisdiction. Both the Authorities relied on by the learned counsel for the Respondents are not applicable in the present case because in the matter of Commissioner of Sales Tax, U.P. (supra) in which the Section 12 of the Limitation Act was applicable and therefore the Apex Court held that time spent for obtaining copy of the order to be excluded. In another Authority cited by the learned counsel for the Respondents in the matter of Shri Tularam Govinda Bhogare (supra) the High Court has considered Maharashtra Administrative Tribunal (Procedural) Rules. As per Rule 18 of those Rules, limitation starts from 11 the date of order and the High Court has interpreted the same that the date of order is date of communication of the order. In the present case the facts are altogether different and therefore both the Authorities are not helpful to the Respondents. 8. In the above mentioned facts and circumstances, the Writ Petition preferred by the original Respondents in Misc. Application No. 7 of 2008 is allowed in terms of prayer clause (B) which reads as under: "(B) By issuing a writ of certiorari or any other appropriate writ or order or directions in the like nature, the order dated 8/09/2008 passed by the court of IInd Joint Civil Judge, Senior Division, Latur in Miscellaneous Application No. 7/2008 be quashed and set aside and the Miscellaneous Application No. 7/2008 be rejected." 9. Considering the facts and circumstances of the present case it is made clear that the Respondents are at liberty to take appropriate steps according to law for setting aside the order dated 26th November, 2007 in Misc. Application No.14 of 2000. 12 10. No order as to the costs. 11. Rule is made absolute in the above terms. [K.K. TATED, J.] asb/AUG09/wp1049.09