wp7989­10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7989 OF 2010 Mahadev Appaji Koli & Ors. .. Petitioners Versus Chairman, Maharashtra Grahanirman Mandan .. Respondent Mr.M.A.Khan for petitioners Mr.Chetan Patil for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd JUNE 2011. P.C.: 1] The petitioners before this Court are aggrieved and dis-satisfied with the order of the learned Member of the State Cooperative Appellate Court (Appellate Court) dated 28th July 2010 setting aside an order dated 19th April 2010 passed by the learned Judge Cooperative Court No.2, Kolhapur in Misc. Application No.87 of 2005. The learned Judge, Cooperative Court condoned the delay in filing application to set aside the ex parte decree. The Cooperative Court No.2 Kolhapur passed wp7989­10.doc 2 a judgement and award dated 27th June 2005 in Dispute No. 1684 of 1998. The petitioners are the original opponents in this dispute. They contended that they came to know of the ex parte judgement and order passed on 29th November 2005. They came to know of this award when it was put into execution by the Civil Court. The case of the petitioners was that they have filed the application to set aside the award passed ex parte within a period of 30 days from the date of obtaining certified copies and therefore, there is only two days delay in filing the same. That may be condoned in the interest of justice. 2] That application was opposed by the original disputants viz., Chairman Maharashtra Griha Nirman Malki Sanstha. The learned Judge Cooperative Court heard this Miscellaneous application and concluded that the delay caused, though according to the original disputant is 37 days, but it is only two days. The learned Judger has found that sufficient cause is made out for condonation of this delay and, wp7989­10.doc 3 therefore, the same deserves to be condoned in the interest of justice. This order dated 19th April 2010 came to be impugned by filing revision application before the Maharashtra State Cooperative Appellate Court. That application was filed by the applicant respondent No.1 before me. The learned Member of the Cooperative Appellate Court after hearing both sides concluded that the learned Judge of the Cooperative Court has erred in exercising the jurisdiction to condone the delay because the conduct of the present petitioners is such that they have abused the process of the Court. The dispute was filed in the year 1998. They appeared in the dispute and gave an undertaking to abide by law. Thereafter, they did not appear in the proceedings. The dispute succeeded because the present petitioners remained absent. There was no written statement filed on their behalf. They did not contest the proceedings even otherwise. In such circumstances, the litigants who have abused the process of law and by violating an undertaking given to the trial court deserve no sympathy and that is how the learned Member of Cooperative Appellate Court held that the wp7989­10.doc 4 delay does not deserve to be condoned. 3] It is this order which is impugned in the present petition. 4] A careful perusal of the application made for condonation of delay, reply thereto and the order under challenge show that the Maharashtra State Cooperative Appellate Court while interfering in its revisional jurisdiction has not held that the trial Judge has committed any error of law apparent on the face of record or the order is vitiated on account of perversity. 5] It is only the conduct of the present petitioners which has weighed with the Appellate Court. While it may be that they have not abided by the undertaking given to the Cooperative Court and, therefore, final orders in the dispute had to be put in execution and at that time resisting the execution they realised that they should have the decree set wp7989­10.doc 5 aside. However, that does not mean that liberty contemplated by law to apply for setting aside the decree is not available to them. Their application clearly stated that they became aware of the ex parte judgement and award only after the same was put in execution. They have given reasons as to why they could not appear earlier. Having found that there was some lapse on their part and their conduct can be said to partly blameworthy, by compensating the original disputants with a direction to pay cost, this application could have been allowed. Instead, the learned Member of the Cooperative Appellate Court has only on account of conduct of the petitioners interfered with the discretion exercised and has proceeded to set aside the order. I am of the view that no case was made out for interference in limited jurisdiction of the appellate court. For the reasons aforesaid, the impugned order is quashed and set aside. 6] The order passed by the Cooperative Appellate Court on 19th April 2010 is restored but with modification that the wp7989­10.doc 6 petitioners shall pay costs to the first respondent quantified at Rs.5000/-. On cost being paid the delay is condoned and the application for setting aside ex parte judgement and award be heard as expeditiously as possible and disposed of within three months from today. If the cost is not paid, the consequences will follow. Petition disposed of with aforesaid directions. (S.C.DHARMADHIKARI, J)