1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 169 OF 2008 Gulam Kadir s/o Abdul Wahed age 85 years, occup. Nil. r/o Bahadurpura, near Gandhi Nagar, Aurangabad. applicant versus Aurangabad Municipal Corporation through its Deputy Commissioner, Maroti Yadavrao Kamble, age 40 years, occupation : service, r/of office address, Aurangabad Municipal Corporation, Town Hall, Aurangabad. Respondent ------- Shri G.D.Shaikh, Advocate, for the petitioner. Smt. M.A. Deshpande, Advocate for Respondent. Coram: P.R. Borkar J. Date: October 1, 2009 P.C. 1. This civil revision application is directed against the order passed by the learned District Judge-II, Aurangabad on 3.10.2008 in Miscellaneous Application Requiring Judicial Inquiry (MARJI)No.275 of 2006, whereby delay in filing appeal by present Respondent against the judgment and decree passed by the IV Joint Civil 2 Judge (Senior Division), Aurangabad in R.C.S. No. 1214 of 1989 dated 16.12.1995 is condoned. 2. Admittedly, present applicant had filed R.C.S. No. 1214 of 1989 in the court of Civil Judge, Senior Division, Aurangabad for perpetual injunction against present Respondent-corporation. The 4th Joint Civil Judge, Senior Division, Aurangabad decreed the suit and issued injunction. As against the same, Respondent-Corporation filed appeal in the District Court with an application for condonation of delay in filing appeal. Application seeking condonation of delay came to be registered as MARJI No.275 of 2006. It is stated in the application that though the suit was decided on 16.12.1995, a meeting was held for detailed enquiry in respect of suits filed against the Corporation and which of them were decided against and in favour of the Corporation. In the said meeting, it was noticed that judgment in R.C.S. No.1214 of 1989 filed by present appellant against the Corporation was not challenged in the appeal court. It is also submitted that there were two suits in the similar name of the present plaintiff-appellant which were decided against the Corporation and the same were to be challenged by way of appeal. Because of similarity in the names of the plaintiffs in the two suits, the officer of the Corporation was under impression that the Corporation has filed appeal against the judgment 3 in the said suit. In the said meeting enquiry was made with the Advocates on panel and on perusing record it was noticed that no appeal was filed against the decree in suit No.1214 of 1989 and, therefore, immediately copies were procured and appeal was filed. It is further stated that acquisition of the suit property by Municipal Corporation for playground and construction of D.P. road would get affected if injunction in respect of the same is continued. 3. The application for condonation of delay filed by present respondent-Corporation before the District Court, was opposed by present applicant vide his say at Exh.16. 4. The District Court came to the conclusion that the reason shown for seeking condonation of delay was satisfactory and justifiable and accordingly it allowed the said MARJI No.275 of 2006 vide order dated3.10.2008. It is this order which is challenged in the present civil revision application. 5. Heard Shri G.D. Shaikh, learned counsel for the applicant-plaintiff and Smt. M.A.Deshpande, learned Advocate for the respondent-Defendant. Both the learned Counsel have cited several authorities in support of their respective submissions. 4 6. Advocate Shri G.D.Shaikh, relied upon the observations in paragraph 9 of judgment in the case of Laxman N. Divekar v. State of Maharashtra, AIR 1998 Bombay 176. Therein, in para 9, it is held: "9. In the present case, there is no allegation in the application made by the state that delay occurred due to the acts of fraud or bad faith on the part of its officers or agents or the concerned officers acted contrary to the interest of the State and reasons given were not found to be sufficient." In paragraph 10, it is also observed that equal standards should apply to the State and private party. 7. Second case cited by Advocate Shri Shaikh is Kamalbai Narasaiyya Shrimal vs. Ganpat Vithalrao Gavare 2007 (2) All M.R. 608. He drew my attention particularly to paragraphs 14 and 15. It is observed; "Needless to say the question of delay would be considered in peculiar facts of each case. There cannot be a straight jacket formula in such a matter. Adequacy of reasons stated by the petitioner was duly considered by the learned Appellate Court and as such the impugned interference regarding absence of sufficient cause as drawn by the Appellate Court is justified. In any 5 case, it can not be held that the impugned order is perverse or malafide." 8. On the other hand, learned counsel for respondent-Corporation Smt. M.A.Deshpande, relied upon observations in the case of Ashok Balaji vs. Nagpur Improvement Trust, Nagpur, 2004 (3) Mh.L.J. 659 in which Single Judge of this court observed: " In the matter of condonation of delay, the court has to see as to what shall get condoned if the delay is not condoned. If the grievance of the applicant is not opened for scrutiny, observance of mandatory provision of law shall stand neglected and balance of justice cannot be struck if the delay is not condoned. It will have to be seen what gets condoned is illegality, if delay is not condoned which certainly cannot be allowed." In the facts of that case, it was observed that if delay is not condoned, the unauthorised construction will get condoned. 9. Another case cited by Advocate Smt. Deshpande is Nilesh Deshmukh vs. Mathurabai Deshmukh 2005 (4) Mh.L.J. 481. In paragraph 10 of the judgment, this court extensively reproduced principles laid down in the case of Collector, Land Acquisition, Anantnag vs. Mst. Katiji AIR 1987 SC 1353. Advocate Smt.Deshpande mainly emphasized on the principle Nos.4 and 6 reproduced in para.10 of the case cited which read"- 6 "4. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 10. Advocate Smt. Deshpande also relied upon case of Ram Nath Sao vs. Gobardhan Sao 2002 AIR SCW 978. She referred to paras 7 and 8 of the judgment. 11. In the present case, no doubt there is enormous delay and taking into consideration the said fact, the learned District Judge has awarded cost of Rs.5,000/= while condoning delay. At the same time, he has also taken into consideration the fact that the reasons given were stated by responsible officer whose word should not be disbelieved. I do not find any reason to take a view different than that of the District Court. Moreover, the learned District Judge has also in para. 5 of his judgment referred to that the entire CTS No. 13460 was acquired for playground of a high-school and for construction of 50 ft. 7 wide D.P. road and looking to the interest of public at large, it is necessary to subject the impugned judgment and decree to the scrutiny in appeal. 12. After giving anxious thought to the matter and submissions advanced by both the sides, I am of the opinion, that this is not a case wherein any illegality or impropriety is committed by the District Court in allowing the application for condonation of delay. The reasons given are sufficient and therefore the application seeking condonation of delay was rightly allowed. Hence, civil revision application is dismissed at the admission stage. pnd/cra169.08 (P.R.BORKAR, J.)