1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CAO NO. 838/2010 AND MCA ST. (Rest.) NO. 10148/2010 IN WRIT PETITION NO. 2225 OF 1996 (Jawaharlal Nemichand Jain vs. State of Maharashtra thr. the Additional Collector, Nagpur & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 07, 2010. Heard Shri Quazi, learned counsel for the applicant, Shri Fulzele, learned AGP for respondent No. 1 and Shri Purohit, learned counsel for respondents No. 2 to 6. The prayer in the application is to condone delay of three years and 224 days in filing MCA Stamp No.10148/2010 for restoration of Writ Petition No. 2225 of 1996, which was dismissed in default on 05.10.2006 and in CA the reason given is there was oversight or negligence on the part of the counsel for the applicant and, therefore, he could not remain present on 05.10.2006. Respondents No. 2 to 6 have filed reply affidavit opposing the prayer. Shri Purohit, learned counsel has pointed out that present proceedings are filed on 17.06.2010 while in execution, the applicant filed a pursis on 18.11.2009 communicating to the 2 Executing Court dismissal of Writ Petition on 05.10.2006. He states that this was also repeated on 30.01.2010. He has pointed out that on 04.10.2006 there was no appearance for the applicant and hence on that date the matter was adjourned to 05.10.2006, when it came to be dismissed in default. The perusal of records of writ petition show that on 04.10.2006, writ petition was called out and as nobody turned up for the applicant/ petitioner, it was passed over. Again, it was called and nobody appeared and hence it was adjourned to next date. On 05.10.2006, again nobody appeared for the petitioner on both occasions and hence it was dismissed in default. The records show that the reviewing authority under C.P. and Berar Rent Control Order had granted permission to the petitioner – landlord to terminate the tenancy of Respondents No. 2 to 6. The said respondents thereafter sought rehearing of review, and in that, application was filed for dismissal. The cognizance of rehearing taken by the appellate authority was challenged in writ petition. It also appears that in writ petition, this Court granted interim relief and thereby stayed further proceedings in said rehearing. On the basis of permission granted by the reviewing authority, the applicant – landlord also succeeded in obtaining eviction decree which is put into execution. It is, therefore, apparent that the dismissal of 3 writ petition resulted in revival of impugned order of reviewing authority by which reviewing authority held that permission granted by it needed to be ignored and the rehearing was required to be proceeded further on merits. In other words, the appellate order in favour of tenant stood revived. In this background, the pursis dated 18.11.2009 or 30.01.2010 filed by the landlord before the Executing Court show the misconception. The applicant through counsel has urged in said pursis that as writ petition is dismissed, execution can proceed further on merits. The position was exactly opposite. As writ petition was dismissed, the execution also needed to be dismissed. All this, therefore, shows inadvertence on the part of counsel, who was handling the petition and execution proceedings. The applicant – landlord cannot be blamed for it. In this situation, the applicant was asked to show his bonafides. It was informed that in case delay is to be condoned, the applicant – landlord shall, in case of an order requiring respondents No. 2 to 6 to vacate, give them three years and 224 days to vacate. The learned counsel for the applicant has urged that the issue can be considered while deciding writ petition on merits. Shri Purohit, learned counsel states that as application filed does not contain any just and sufficient reason, this Court should not interfere in the matter and 4 the order dated 05.10.2006 passed in writ petition should be maintained. Though application for condonation of delay and for restoration of writ petition, as filed, are not happily worded, but I feel that the applicant cannot be blamed for that. Writ Petition was filed admittedly in 1996 and had not been decided on merits. Hence, subject to undertaking of the applicant to give to respondents – tenants reasonable time to vacate, in case his writ petition is allowed, the order dated 05.10.2006 is recalled. Writ Petition is restored back to file. As Respondents No. 2 to 6 are using suit premises for running a shop (trading establishment), time of one year will be sufficient for them to find out alternate site in case they lose in the matter. The applicant – petitioner to file an undertaking accepting to give such time to the respondents in case of favourable order in his favour in the petition. The undertaking be filed within two weeks from today with an advance copy to Respondents No. 2 to 6. Subject to this, order dated 05.10.2006 is recalled and Writ Petition No. 2225 of 1996 is restored back to file. If the undertaking as mentioned above is not filed, the orders dated 05.10.2006 shall stand restored. It is made clear that acceptance of copy of undertaking by Respondent No. 2 to 6 would not 5 prejudice their rights to challenge this order before appropriate forum. CAO No. 838 of 2010 and MCA St. (Restoration) No. 10148/2010 are accordingly allowed. No order as to costs. JUDGE *GS.