IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 240 OF 2008 SMT. KALYANI AMIN ..APPLICANT (ORIG. DEFENDANT NO. 9) V/S HOMI JAL CHIBBER & ORS. ..RESPONDENTS (ORIG. PLAINTIFFS) WITH CIVIL REVISION APPLICATION NO. 241 OF 2008 SMT. CHANCHAL PATEL ..APPLICANT (ORIG. DEFENDANT NO. 8a) V/S HOMI JAL CHIBBER & ORS. ..RESPONDENTS (ORIG. PLAINTIFFS) MR. K.P. TIWARI, ADVOCATE I/BY M/S. K.P. TIWARI & CO., FOR THE APPLICANT. MR. A.K. ABHYANKAR, SR.COUNSEL, A/W MR. NITIN MHATRE FOR RESPONDENT NO. 1 & 2. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. DATE : 25TH MARCH, 2008. DATE : 25TH MARCH, 2008. DATE : 25TH MARCH, 2008. P.C. : 2 : 1. Heard learned counsel for the parties. Revision Applicants before the court were the defendant No. 8(a) and 9 in RAE & R Suit No. 599/1300 of 1994. 2. Original plaintiff No. 1 Mrs. Aloo Chibber is no more alive. The suit was filed for eviction from the suit premises being the entire first floor of Mayo House, 9, Cooperage Road, Mumbai-400 039 alongwith the garage situated on the ground floor. Original tenant was Miss Rachel Hayeem who had died and defendant Nos.1 to 6 were her L.Rs. Defendant No. 8 Govindbhai and Defendant No. 9 Kalyani Amin were said to be living in the servant quarters of the said building as they were allowed to occupy the servant quarters by the original tenants for providing certain services to her. Defendant Nos. 8 and 9 did not file any written statement and the matter proceeded without their written statement. Applications to accept the written statements were turned down and that the order was never challenged by the Defendant Nos. 8 and 9. The suit was contested only by the defendant nos.1, 2 and 3. However, later on some settlement took place between the plaintiff and the defendant nos. 2 and 4 and defendant nos. 2 and 4 consented for a decree. Defendant No. 1 had died and defendant No. 3 was the only executor of the will of the defendnat no.1 without any personal : 3 : interest in the dispute. Defendant No. 5 and 6 were not ready to sign the consent terms and in the result the evidence was taken and judgment dated 29-9-2006 was passed and decree came to be passed against the defendants. After that the defendant no. 9 and legal representative of deceased defendant no. 8 Govindbhai sought to file Appeals against the said judgment and decree and took out Misc. Application Nos. 37 of 2008 and 38 of 2008 for condonation of delay of about 13 to 14 months in filing the appeals. After hearing the parties learned Appellate Bench of the Small Causes Court rejected those applications and refused to condone the delay in filing the application. This is how the original defendant no. 9 and L.Rs. of original defendnat no. 8 have preferred these two Revision Application No. 240 of 2008 and 241 of 2008. 3. Heard learned counsel for the parties. Perused the impugned order. 4. It is material to note that defendant no.8 Govindbhai Patel and defendant no. 9 Kalyani Amin were occupying only servant quarters which were in the part of the said building. They were not tenants. The original tenant was defendant no. 1 and her L.Rs. It : 4 : is material to note that defendant no. 8 and 9 had not filed any written statement though suit was pending since 1994 and had not contested the suit. Therefore, it appears that they had no defence in the suit for eviction. However, it appears that after the decree was passed and when the decree was to be executed, these 2 defendants moved an application under Order IX Rule 13 of the Civil Procedure Code for setting aside the ex-parte decree. However, that application was rejected. After that the Revision Applications were filed before the Appellate Bench of the Small Causes Court and they also sought stay to the execution of the decree. As stay was refused, they preferred Writ Petition before this court which came to be disposed of by order dated 24th August, 2007 by giving direction to the Revisional Court to decide the application for stay to the execution of the decree within 4 days. After that the Revision Applications themselves were rejected by the Revisional Bench of the Small Causes Court. Thereafter Revision Applications were filed in this court on 4th December 2007. Revision Applications were disposed of as withdrawn as the Applicants wanted to prefer Appeal against the decree of eviction. After that both of them filed Appeals alongwith the application for condonation of delay. Appeals were lodged on 12/12/2007 against the decree, which was : 5 : passed on 29/9/2006. Thus there was delay of more than 13 months in filing the Appeal. It is not the contention of the Applicants that they were not aware about the said judgment and decree. They had simply taken different proceedings to get that decree set aside. In that attempt they failed. 5. Now even assuming that there was good cause for delay in filing the Appeal, it is clear from the record that the present Applicants had not filed any Written Statement and there is no defence and in such circumstances no purpose would have been served by condoning the delay in filing the Appeal. I have made certain queries from the learned counsel as to how these 2 persons had come in possession of a part of the suit premises. But even after having discussion with his clients, learned counsel could not say if they have any defence in the matter. When the Applicants have no defence in the matter, no purpose will be served by condonation of delay in filing the Appeal. In such circumstances, there was no justification to condone the delay of 13 months. Learned trial court has rightly noted that these two persons were fully aware about the result of the suit and the decree and had failed to prefer Appeal within time. Though the suit was pending since 1994 till 29-9-2006, they had never filed any : 6 : written statement nor they had challenged the order passed by the trial court to proceed without written statement and only when the decree was passed they tried to create obstruction simply by filing different proceedings. 5. Taking into consideration the circumstances noted above, I find no illegality or material irregularity in the impugned order passed by the Appellate Court. In the result, both the Revision Applications stands dismissed. 6. At this stage, learned counsel for the Applicants seeks stay to this order. However, this request is opposed by the learned counsel for the Respondent/Orig. landlord. In view of the facts noted above, as the present applicants have no defence at all, I see no justification to stay the effect of the order. (J. H. BHATIA, J) (J. H. BHATIA, J) (J. H. BHATIA, J)