1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5559 OF 2009 Narayan Shankar Dev ...Petitioner vs. 1 Shri Laxmi Narayan Devashtan 2 Shankar Raghunath Dev (since deceased through his legal heirs) 2A Smt.Vimalabai Shankar Dev 2B Smt.Shankar Devi 2C Bhalchandra Shankar Dev 2C (i) Smt.Rohini Bhalchandra Dev 2C (ii)Mrs.Pallavi Uday Mone 2D Sau Karuna Yeshwant Karmarkar 2E Sulabha Haribhai Joshi 2F Sau Vaishali Waman Bodas 3 Anant @ Bandu Shankar Dev ...Respondents Mr.Uday Warunjikar for the petitioner Mr.Surel Shah for respondent no.1 CORAM :A.S.OKA,J. DATE OF HEARING THE LAST ARGUMENTS: OCTOBER 16, 2009 DATE OF PRONOUNCEMENT OF THE JUDGMENT:NOVEMBER 11,2009 JUDGMENT : 1 The first respondent in this writ petition under Article 227 of the Constitution of India is the original plaintiff. The petitioner is the second defendant. On 16th April 1990, the suit was decreed and a decree for possession has been passed in favour of the first respondent. The petitioner along with other two 2 defendants preferred an appeal against the said decree. A power of attorney was executed by the legal representatives of the defendant no.1 as well as by the petitioner in favour of the 3rd defendant (3rd respondent herein). On 15th October 2001, the appeal was dismissed in default. An application was made by the petitioner under Rule 19 of Order XLI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) for restoration of the appeal. As there was a delay of 4 years and ½ months in applying for restoration of the appeal, an application for condonation of delay was made by the petitioner. The said application was contested by the first respondent. On 3rd April 2007 the learned District Judge rejected the said application. However, by order dated 16th August 2007 passed by this court in Writ petition no.3685 of 2007, the said order dated 3rd April 2007 was quashed and set aside and the learned District Judge was directed to decide the application afresh. By the impugned Judgment and order dated 20th March 2009, application for condonation of delay has been rejected. This is the order impugned in the present petition. 2 The learned counsel for the petitioner submitted that the record of the appeal shows that the 3rd respondent who was given a power of attorney by the petitioner was acting in collusion with the first respondent-plaintiff. He submitted that both the 3 parties were not aware of the dismissal of the appeal. The executing court before which the execution application was pending for executing the decree of Trial Court issued notice to the first respondent as well as the defendants for ascertaining the status of the appeal. He submitted that immediately after the petitioner became aware about the dismissal of the appeal, he approached the court for restoration. He submitted that the collusion between the 3rd respondent and the 1st respondent is apparent on the face in as much as the Advocate who had filed the caveat on behalf of the first respondent later on appeared for the 3rd respondent. He submitted that the 3rd respondent who was the constituted attorney of the petitioner kept the petitioner in dark about the progress of the appeal. He submitted that he did not bother to prosecute the appeal. He, therefore, submitted that the delay deserves to be condoned and the appeal deserves to be considered on merits. 3 The learned counsel for the first respondent pointed out that admittedly the petitioner had executed a power of attorney in favour of the 3rd respondent which also empowered him to compromise the dispute. He pointed out that even assuming that the 3rd respondent has committed breach of trust, the 1st respondent cannot be allowed to suffer. He submitted that there is absolutely no explanation for long absence and long delay of 4 years. He submitted that a discretionary order has been passed 4 by the District Court by which the application for condonation of delay has been rejected on the ground that there was no explanation for such a long delay. He submitted that no interference is called for. 4 I have given careful consideration to the submissions. There is a decree for possession passed against the petitioner and 2nd and 3rd respondents. In the application for condonation of delay, the petitioner has stated that the petitioner and the respondent no.2A to 2G had appointed the 3rd respondent Anant @ Bandu Shankar Dev as Constituted Attorney for prosecuting the appeal. It is stated that the petitioner had made arrangement for necessary funds to prosecute the Appeal and the 3rd respondent used to visit the District Court at Satara for prosecuting the appeal. It is stated that the petitioner was informed that the appeal was awaiting the paper book. It is stated that taking undue advantage of trust reposed by the petitioner,the 3rd respondent did not prosecute the appeal by acting in collusion with the first respondent and obtained possession. 5 The learned District Judge observed that the 1st respondent was not concerned with the disputes between the petitioner and the 3rd respondent. The learned District Judge pointed out that the petitioner has not disclosed as to who had given information to him on 19th April 2006 that the first Respondent was likely to take possession. The District Judge, therefore, rejected the 5 application for condonation of delay. 6 As stated earlier, the appeal was dismissed on 15th October 2001 for want of prosecution as none appeared for the petitioner. It is pertinent to note that the executing court before whom the execution application was pending issued notices to the parties on 26th May 2004 for ascertaining the progress of the Appeal. Similar notice was again issued by the executing court on 8th September 2004. Another such notice was issued by the executing court to both the parties on 26th October 2005. Therefore, the first respondent-plaintiff had not informed the executing court till 26th October 2005 about the dismissal of the Appeal. On the date on which the Appeal was dismissed, the rozanama shows that none of the parties were present. All this supports the case of the petitioner that none of the parties were aware of the dismissal of the Appeal. It appears that on 18th April 2006 the 1st respondent filed an application before the Executing Court pointing out to the court that the appeal preferred by the petitioner was dismissed on 15th October 2001. 7 The Roznama of the Appeal discloses that the appeal was dismissed for want of prosecution. The petitioner was examined on oath in support of application for condonation of delay. In the examination-in-chief he stated that he became aware that the 1st respondent was to take possession on 19th April 2006 and therefore, he 6 made enquiry when he learnt that the appeal was dismissed on 15th October 2001. Thereafter, an application was made for certified copy of the order. It is stated that on 19th June 2006, the petitioner revoked power of Attorney in favour of the 3rd respondent by issuing a public notice. The application for restoration was filed on 19th April 2006. 8 The petitioner had appointed the 3rd respondent as his constituted attorney for prosecuting the appeal. An Advocate was appointed to prosecute the appeal. There was no direction issued by the Appellate Court enjoining the petitioner to remain personally present on the date fixed for hearing the appeal. It appears that the default is on the part of the 3rd respondent who was the appointed to prosecute the appeal. The Advocate representing the petitioner also remained absent. Considering all these aspects there was more than sufficient explanation in the application and in the evidence of the petitioner for such a long delay of more than 4 years. The delay deserves to be condoned subject to payment of heavy costs. The amount of costs is quantified at Rs.15,000/-. If the reasons given for condonation of delay are accepted, on the same ground, the order of restoration of appeal must follow. The reason is that the petitioner has come out with a valid explanation for his absence on the date on which Appeal was dismissed. Therefore, now deciding the application 7 for restoration remains a formality. If application restoration is kept pending, the first respondent plaintiff will suffer prejudice. Therefore, after condonation of delay, an order deserves to be passed for restoration of appeal. 9 Hence, I pass the following order : i) Impugned order dated 20th March 2009 is quashed and set aside. ii)Misc. Application no.72 of 2006 is allowed and delay stands condoned. iii)The application for restoration of the appeal also stands allowed. iv)The petitioner will pay a costs of Rs.15,000/- to the first respondent within a period of eight weeks from today. Deposit of costs with Appellate court shall be treated as sufficient compliance. v) If the amount of costs is not deposited within stipulated time, the order of dismissal of the Appeal will stand. vi)The Appellate Court will decide the appeal expeditiously and in any event on or before 30th April 2010. vii)Writ petition is partly allowed in above terms. JUDGE