1 C.R.A.No.106/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.106 OF 2010 1. Mohd.Abdul Mohtesham s/o Abdul Nayeem, Age 60 years, Occu.Agriculture, R/o Pathrud, Taluka Majalgaon, District Beed 2. Mohd.Abdul Motesham s/o Abdul Nayeem, Age 60 years 3. Mohd.Abdul Mufakkam s/o Abdul Nayeem, Age 55 years 4. Mohd.Abdul Muajjam s/o Abdul Nayeem Age 50 years 5. Abdul Munam s/o Abdul Mustakeem, Age 37 years 6. Abdul Ajeem s/o Abdul Mushtakeem, Age 31 years 7. Abdul Washim s/o Abdul Mustakeem, Age 27 years 8. Abdul Qajeem s/o Abdul Mustakeem, Age 26 years 9. Ifzalunnisa Begum w/o Dr.Iqbal Age 29 years All petitioners 2 to 9 Occu.Agriculture R/o Patrud, Taluka Majalgaon, District Beed, through G.P.A. Petitioner No.1 .. PETITIONERS (Orig.Pltffs.1 to 4 & 6 to 10) (Pltff. No.5 deleted as died) VERSUS 1. Abdul Kaseem s/o Abdul Moinsaheb, Age 34 years, Occu.Service & Business R/o Yusuf Colony, Parbhani 2. Abdul Aseem s/o Abdul Moinsaheb, Age 49 years, Occu. r/o as above 2 C.R.A.No.106/2010 3. Abdul Arham s/o Abdul Moinsaheb, Age 46 years, Occu.R/o as above 4. Abdul Ahad s/o Abdul Moinsaheb, Age 29 years, Occu.R/o as above 5. Abdul Mukhtedar s/o Abdul Moinsaheb died L.Rs. (i) Siddiqui Moiz s/o Abdul Mukhtedar, Makdumpura, Taluka District Parbhani (ii) Siddiqui Mubashhir s/o Abdul Mukhtedar, Fatedarwaza, Mohd.Shukarky Kaman, Hyderabad (iii) Salma Begum w/o Abdul Hammad R/o Pakistan (iv) Ayesha w/o Abdul Rafe R/o Fatedarwaza, Mohd.Shukarky Kaman, Hyderabad 6. Abdul Khadir s/o Abdul Moinuddin Age 58 years, Occu.as Postman, Jublee Post Office, Hyderabad (A.P.), 7. Abdul Wase s/o Abdul Razzak, Age 36 years, Occu.Service, Business R/o Hyderabad ( A.P.), 8. Abdul Raufe s/o Abdul Razzak, Age 32 years, Occu.Service, Business, r/o Hyderabad (A.P.) 9. Abdul Jame s/o Abdul Razzak Age 29 years, Occu.Service & Business, R/o Hyderabad (A.P.) Respondents 5, 7, 8, 9 through their power of attorney Abdul Salim s/o Abdul Allem, Age 44 years, Occupation Agriculture, R/o Patrud, Taluka Majalgaon, District Beed .. RESPONDENTS (Orig.Defts.2,3,4,5,6 & 9, 10,11,12) (Deft.1,7,8,13,14 deleted as died) 3 C.R.A.No.106/2010 Mr D.R.Bhadekar, Advocate for petitioners Mr S.P.Deshmukh, Advocate for respondents 5 (ii) and 5(iv) Respondent 5(iii) is formal party Respondent No.5 (i) served by affixing on the residential door (refused to accept) Mr V.D.Salunke, Advocate for respondents 1 to 4 and 6 to 9, absent CORAM : K.U. CHANDIWAL, J. DATE : 30th November, 2011 ORAL JUDGMENT 1. Heard extensively. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, heard finally at the stage of admission. 2. In M.C.A.No.15 of 2004, the learned Ad hoc District Judge -1, Majalgaon, by his order dated 14.8.2008 condoned the delay in preferring the appeal, under Section 5 of the Limitation Act, is questioned in the revision. 3. Regular Civil Suit No.484/1986 was moved before learned Civil Judge, Junior Division, Majalgaon, which was decreed on 30.7.1996. In the said proceedings there were ten plaintiffs, while defendants were fourteen in number. After the said decree, another suit being R.C.S.No.110/2002 was moved by claiming purchaser of the property. The applicants in the M.C.A. and also the respondents therein were parties. It is pertinent, in the said suit one of the prayer was, the decree dated 30.7.1996 passed in R.C.S.No.484/1986 be declared 4 C.R.A.No.106/2010 illegal, collusive, null and void and not binding upon the plaintiffs therein. The suit was filed on 24.4.2002. 4. The respondents in their application seeking excuse of delay by virtue of Section 5 of the Limitation Act canvassed that they were not properly served and without effecting the service, the suit came to be decreed. The knowledge informed in paragraph 1 of the application is when they approached the Talathi concerned of the village, at that time said Talathi gave information about the suit and decision of the said suit and they obtained copies of the said judgment and decree of the suit on 22.3.2002. Since subsequent three days were holidays and due to financial constraint they were unable to prefer appeal on 26.3.2002 and consequently, filed the appeal. In the body of said application, particularly paragraph 2 or anywhere the said applicants consciously did not inform exact period of delay occasioned in making the application. They left these aspects in hassle and hanky-panky either by calculation or by believing their assertion of knowledge to be dated 22.3.2002. 5. The knowledge informed by the respondents in the revision, is basically contrary to the record. Unfortunately, the learned Ad hoc District Judge swayed to other aspects of the matter, divorced from the plaintiffs in R.C.S.No.484/1986 or pleadings and defence/evidence in R.C.S.No.110/2002 (subsequently numbered as 210/2006). 5 C.R.A.No.106/2010 6. Mr Deshmukh, learned Counsel submits, this Court sitting in revision would be having very limited scope to dwell upon situation. However, the Court cannot shut its eyes for grave mistake featured in order, sneaking the logical end. The instances to quote are adequate. While answering the points in the said M.C.A. No.15/2004, learned Judge observed in paragraph 4, “ It prima facie appears from the suit summons Exh.12 that it was received and signed only by defendant No.5 Abdul Ahad. It appears from the report of Bailiff of Parbhani Court that he did not individually serve the suit summons to defendant Nos. 2, 3 and 4 but handed over their documents to defendant No.5 Abdul Ahad, as they all were residing together. The learned Judge could not browse separate report of the Bailiff in the record. This service could not be declared ineffective. He should have been aware of scheme in Rule 15 of Order V, C.P.C. The learned Judge, referred in paragraph 5 that the applicant No.5 therein Abdul Mukhtedir was shown as defendant No.6 in the suit. Advocate Shri Bhilegaonkar appeared on his behalf as per Vakalatnama Exh.13. There was address memo at Exh.14. One Abdul Salim appeared on the strength of Power of Attorney, executed in his favour by Abdul Mukhtedir. However, the learned Judge could not browse the original record since it was in “D” file and reportedly destroyed. Not making available the record to learned Judge, itself will not defuse the existence of exhibits referred in the judgment and in the Rojnama. There was no reason for the learned District Judge to have generated an impression of falsehood in such record. 6 C.R.A.No.106/2010 7. Another feature of the matter is under the statutory arrangement in terms of Order V, Rule 20 (1) (a) of C.P.C. summons were tried to be served by publication against defendant Nos.10 to 12 in the suit (applicant Nos.6 to 8 in the said application). The application for publication was allowed. The suit summons were published in Urdu newspaper, “Rehnuma-e-Dakan”, having circulation at Hyderabad. This service was accepted by the Court of first instance. The learned District Judge exercised his knowledge of Urdu to inform that there was no particulars about suit property in the summons. The summons published in the said newspaper was under the format prescribed under the rules of Code of Civil Procedure and it does not mandate that the minute details of the property are necessarily to be informed. Another anomaly, the learned Judge has noticed is suit number being referred as 404/1986, he missed the bus by referring it as “1”. Indeed, it is a slash, which could not be branded to be “186”, it was depicting the year “1986”. By such illusory impressions of the matter, he felt that there was no service upon applicant Nos.6 to 8 in the said proceedings. This certainly calls for interference. 8. The learned Judge was unnecessarily influenced that a decree in R.C.S.No.484/1986 recorded on 30.7.1996, in spite of no execution was filed till the year 2002. This could not be gathered to be a ground against the respondent in the M.C.A. (original plaintiffs in R.C.S.No. 484/1986). 7 C.R.A.No.106/2010 9. In R.C.S.No.110/2002 (R.C.S.No.210/2006) since by a substantial prayer for setting aside the decree dated 30.7.1996 in R.C.S.No. 484/1986 was challenged, the judgment of the learned Civil Judge, Junior Division while deciding said Regular Civil Suit takes care of all the details by informing the same in paragraphs 10 and 12 of the judgment dated 8.2.2008. These observations of the learned Judge were not prima facie in nature; were the observations on due exercise of the evidence, which was adduced and on its analysis and examination in the said case, minute details of the service, the power of attorney, its effect, existence with the names of the parties was indicated. 10. These aspects, as could be seen were not gone into by the learned Ad hoc District Judge while entertaining the application in question. 11. The exercise of powers in terms of Section 5 of the Limitation Act, placing reliance to the judgment in the matter of N.Balakrishnan V. Krishnamurthy, reported in AIR 1998 Supreme Court 3222, by the learned Judge is certainly misplaced. The Honourable Supreme Court, in the matter of P.K. Ramchandran V. State of Kerala and another, reported in 1998 AIR SCW 2177 while discussing the scope and ambit of Section 5 of the Limitation Act and the parameters of condonation of delay, have observed in paragraph 6 that, “ Law of limitation may harshly affect a particular party but it has to be applied 8 C.R.A.No.106/2010 with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained.” 12. Shri Deshmukh, the learned Counsel for the respondent placed reliance to the judgment of Supreme Court in the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst.Katiji and others, reported in AIR 1987 SUPREME COURT 1353. The Honourable Supreme Court in the said judgment observed : 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 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. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 9 C.R.A.No.106/2010 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. The observations of the Honourable Lordships was, as the High Court in the said case criticised conduct of the State authorities in causing delay in prosecuting the matter and did not venture to file the proceedings within the prescribed period, the High Court did not venture to explain the period available in terms of Section 5 of the Limitation Act to be coined by the State authorities and consequently, the Supreme Court recorded above observations. However, as stated earlier, it was in the facts emerged before Honourable Supreme Court and consequently, cannot be applied with the same parameters in the present case. 13. Again, the conduct of the applicant in M.C.A.No.15/2004 certainly calls for condemnation. They waited for the fruits of the decree, even if they made a show of filing an application prior to the institution of the suit, as the said application was moved on 22.3.2002 while the suit came to be filed on 24.4.2002. However, their dilatory tactics in dealing with the matter not prosecuting the same speaks volume against their conduct. In the result, observations of the learned Ad hoc District Judge, calls for interference, as they are contrary to the record, evidence available to demonstrate perversity than dealing in just direction. 10 C.R.A.No.106/2010 14. Civil Revision Application allowed. Order passed by the Ad hoc District Judge-1, Majalgaon ON 14.8.2008 in Misc.Civil Application No. 15/2004 is set aside. Consequently, appeal will not be registered. Rule made absolute. ( K.U. CHANDIWAL, J.) (vvr/106.10cra)