1 CRA 46 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 46 OF 2009 1. Vinayak s/o Gurunath Patil, Aged 49 years, Occupation Medical Practitioner, Resident of Chetna Nagar, Aurangabad. 2. Shrirang s/o Sheshrao Patil, Aged 51 years, Occupation Business, Resident of Tilak Nagar, Aurangabad. 3. Malti w/o Gurunath Patil, Aged 81 years, Occupation Household, Resident of Chetna Nagar, Aurangabad. Applicants V E R S U S 1. Managing Committee, Masjid Salarganj, Baghsher Jung, Chetna Nagar, Aurangabad. 2. Chief Executive Officer, Maharashtra State Board of Wakfs, Panchakki, Aurangabad Respondents Mr. P.V. Mandlik, Senior Counsel, holding for Mr. A.S. Gandhi, Advocate for the applicants Mr. S.S. Kazi, Advocate for respondent No.1 Mr. A.G. Qureshi, Advocate for respondent No.2 2 CRA 46 of 2009 CORAM : A.V. NIRGUDE, J. DATED : 1st February, 2011 ORAL JUDGMENT : 1. This revision is filed against the order passed on 28th April, 2009, rejecting the applicants’ application seeking condonation of delay that was caused in filing an appeal before the Wakf Tribunal. The facts that led to the application are almost uncontroverted and can be stated as under : 2. The applicants are owner of land survey No. 17, admeasuring 36 acre 3 guntha of Aurangabad. They purchased this land in 1958. The Chief Executive Officer of the Wakf Board held by his order dated 18th April, 2007 that the plot of 80' x 40' bearing CTS No.1585/A14, at New Osmanpura, Aurangabad of land survey No. 17 is belonging to a Mosque. The said piece of land was ordered to be registered as Wakf property. Rather belatedly in November, 2007, the applicants preferred a suit against the impugned order dated 18th April, 2007, before the Wakf Tribunal. The respondents opposed the maintainability of the suit. They contended that in view of Rule 50 of the Maharashtra Wakf Rules, the suit was not maintainable against the impugned order, but the applicants should have filed an appeal. The question of maintainability etc remained pending before the Tribunal till 17th November, 2008. On that day, the learned Presiding Officer of the Tribunal held that the suit was not maintainable and he dismissed the suit on the ground of maintainability. Soon thereafter, within ten days, the applicants preferred an appeal, against the impugned order dated 18th April, 2007. Obviously, the appeal got delayed by several months. The period of limitation for such appeal 3 CRA 46 of 2009 was of 30 days, and so, the applicants preferred an application seeking condonation of delay of 19 months. The learned Presiding Officer of the Tribunal rejected even this application mainly on the ground that the applicants had not challenged the order of the Tribunal dated 17th November, 2008, dismissing the suit on the ground of maintainability. 3. The question is, whether the impugned order is proper ? The answer is in negative. Both the respondents as well as the learned Presiding Officer of the Tribunal were of the view that the applicants could not have filed the suit, they should have filed an appeal. Ultimately, the applicants filed an appeal. The appeal was affected only because of delay. If the appeal was filed, there was obviously no reason for the applicants to challenged the Tribunal's order dismissing their suit on the ground of maintainability. Their action of filing appeal was thus in consonance with the decision of the learned Presiding Officer of the Tribunal dated 17th November, 2008. All that the learned Presiding Officer of the Tribunal was to examine was whether the applicants were prevented due to a justifiable reason from filing the appeal within time. The answer to this question was in affirmative. The applicants got engaged in the erroneously filed suit for quite some time and the period of pendency of that suit between 10th September, 2007 till 17th November, 2008 deserves to be a justifiable cause for delay in filing of the appeal. 4 The only question then remains is whether the applicants could show as to why they approached the Court after five months from the date of the impugned order. They have explained this by saying that on 18th April, 2007, when the order was passed, they were not 4 CRA 46 of 2009 present before the Chief Executive Officer and said that they did not attend the case on next dates also. They said that they learnt about the impugned order in August, 2007, and, within one month thereafter, the suit was filed. The learned Presiding Officer of the Tribunal dealt with this explanation and held that he did not find the explanation satisfactory. No doubt, the explanation is not quite convincing. Nonetheless, the learned Presiding Officer should have realized that the applicants if shut out from filing of the appeal, would lose their opportunity to challenge the merits of the impugned decision given by the Chief Executive Officer. It is generally desirable that a party who approaches the appellate authority with a plea that their appeal should be heard on merits and should be given an opportunity to do so unless the appeal is hopelessly time barred. If the delay is caused and if the delay is not satisfactorily explained, such party at the most can be put to terms directing him to pay certain cost. The learned Presiding Officer of the Tribunal has not adopted this pragmatic, reasonable and usual mode to deal with the application. I find this approach of the learned Presiding Officer erroneous and I am inclined to correct the error. ORDER 1. On payment of costs of Rs.2,500/- each to the respondents, the Civil Revision Application shall stands allowed. The costs shall be paid directly to the respondents or shall be deposited in the Court or on before 28th February, 2011. In case of failure, the revision shall stands dismissed without further reference to the Court. 5 CRA 46 of 2009 2. The delay in filing of the appeal shall stands condoned. 3. The learned Presiding Officer of the Tribunal shall decide the appeal on merits expeditiously as far as possible within 18 months from today. ( A.V. NIRGUDE, J. ) SRM/cra/46/09/1/2/11ok