1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO.13 OF 2006 Bajirao s/o Hariba Sangle, died per heirs and legal representatives (A) Sarubai w/o Bajirao Sangle Age major, Occ. Household, R/o Pimpalwandi, Tq. Patoda, District Beed. (B) Dattatray s/o Bajirao Sangle, Age 60 years, Occ. Service as Zilla Parishad Teacher, (now retired), R/o Pimpalwandi, Tq. Patoda, District Beed. (C) Baban s/o Bajirao Sangle, Age 47 years, Occ. Service, R/o Insha Allah, Bycicly Mart, Wakewadi, Shivajinagar, Pune. (D) Rajendra s/o Bajirao Sangle, Age major, Occ. Service, R/o Pimpri Chinchwad, Plot No.B-466, Pune. 2 (E) Sau. Koushalya w/o Balbhim Madane, Age major, Occ. Household, R/o Matkuli, Tq. Ashti, District Beed. (F) Janabai w/o Uttam Pawar, Age major, Occ. Household, R/o Shiral, Tq. Ashti, District Beed. (G) Sulochana w/o Tukaram Khandagale, Age major, Occ. Household, R/o Shivaji Nagar-5, Pune. ... PETITIONERS (Orig. Heirs of Defendant No.1) VERSUS 1. Ginyandeo s/o Govindrao Pawar, Age 66 years, Occ. Agri., R/o Pimpalwandi, Tq. Patoda, District Beed. 2. Bhagwandas s/o Mukunddas Munot, Age 62 years, Occ. Triloring work, R/o as above. 3. Bhimrao s/o Bajirao Pawar, Age 60 years, Occ. Agriculture, R/o as above. 4. Patilbuwa s/o Dhondiba Pawar, Age 65 years, Occ. Agri., R/o as above. (Nos.2 to 4 deleted as per Court’s order dated 19/6/2007) 5. Gafur s/o Usmanbhai, Age 20 years, Occ. Mason work, 3 R/o Pimpalwandi, Tq. Patoda, District Beed. 6. Nasruddin s/o Usmanbai, Age 30 years, Occ. and R/o as above. ... RESPONDENTS (No.1 Orig. Plaintiff, No.2 to 4 Orig. Deft.Nos.4 to 6 No.5 & 6 Orig. Deft.Nos.2 & 3) ..... Shri A.H. Vaishnav, Advocate for the petitioners Shri S.S. Bora, Advocate holding for Shri S.C. Bora, Advocate for respondent No.1. Shri N.C. Garud, Advocate for respondent No.5. Respondent No.3 absent. ..... CORAM : Shrihari P. Davare, J. DATED : 1st July, 2009. ORAL JUDGMENT : 1. Perused. Rule. Rule made returnable forthwith and taken up for final hearing with the consent of learned counsel for the parties. 2. By the present Civil Revision Application, the petitioners (heirs of original defendant No.1) have challenged the correctness and legality of the order dated 18.11.2005, passed by learned II Adhoc Additional District Judge, Beed on application (Exh. 11) in M.C.A. 4 No.90/2005 and requested to quash and set aside the same and further prayed that the petitioners be permitted to deposit the costs of Rs. 300/- as directed vide order passed on 11.11.2005 on (Exh. 11) in the said M.C.A. No.90/2005. 3. Regular Civil Suit No.148/1988 was filed by respondent No.1 (original plaintiff) against the defendants before Civil Judge, Junior Division, Patoda for perpetual injunction in respect of land bearing Survey No.7/1/A and land Survey No.9/1/A, situated at village Pimpalwandi, Taluka Patoda, District Beed. The said suit was decreed on 24.12.2004. Aggrieved by the said decree, the petitioners i.e. the heirs and legal representatives of original deceased defendant No.1 filed Regular Civil Appeal before the Court of District Judge, Beed. However, there was delay in filing the said appeal. As per contention of the petitioners, there was delay of about 25 days. Hence, the appellants filed an application for condonation of delay i.e. M.C.A. No.90/2005 before the District Judge, Beed. It was heard and the learned II Adhoc Additional District Judge, Beed allowed the said application holding that there was delay of 8 days only and not 25 days, and passed a conditional order on 11.11.2005 condoning the said delay subject to payment of costs of Rs.300/- by the appellant in the Court within 3 days (on or before 14/11/2005), failing which the said application would stand automatically rejected. 4. However, the petitioners/ appellants could not deposit the 5 said amount of costs of Rs.300/- within the said stipulated period of 3 days and thereafter preferred an application before the learned Judge on 18.11.2005 (Exh. 11) and requested to extend the time to deposit the costs of Rs.300/- under Section 148 read with 151 of the Code of Civil Procedure and also expressed their readiness and willingness to pay the costs of Rs.300/- on the said date itself. However, after hearing both the Advocates for the parties, the learned II Adhoc Additional District Judge, Beed passed an order on 18.11.2005 and thereby rejected the said application Exh. 11. Being aggrieved and dissatisfied by the said order, petitioners herein have challenged the correctness and legality of the said order in the present Civil Revision Application. 5. At the outset, Section 148 of the Code of Civil Procedure reads as follows : “Enlargement of time.-- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired. ” 6. Shri A.H. Vaishnav, learned counsel for the petitioners invited my attention to the very last wordings of the said Section “even though the period originally fixed or granted may have expired” and contended that even though the period of 3 days to deposit the costs of Rs.300/- as directed by the learned Judge vide order dated 11.11.2005 6 was expired on 14.11.2005, the learned Judge could have extended the said time for payment of costs as prayed for by the petitioners in the application (Exh. 11) on 18.11.2005 in the interest of justice even after the expiry of the said period. 7. Besides, the learned counsel for the petitioners also pointed out that the order was passed on 11.11.2005 to deposit the costs of Rs.300/- within a period of 3 days i.e. till 14.11.2005 and there were Second Saturday and Sunday on 12.11.2005 and 13.11.2005 and, therefore, there were holidays on the said dates and the office of the Court was closed on the said dates. He further contended that the petitioners’ Advocate who was looking after the Court proceedings in the District Court, Beed practises at Patoda and therefore also delay occurred in payment of the said costs. Shri Vaishnav, learned counsel for the petitioners also made submission that the petitioner himself could not attend the Court on 14.11.2005 as he is a heart patient and was suffering from pains and, therefore, could not visit the office of the Advocate, which resulted into non payment of the costs within the prescribed period. 8. Shri S.S. Bora, learned counsel for respondent No.1 fairly did not oppose the present Civil Revision Application on merits, but pressed for the costs, contending that the respondent No.1 was compelled to appear in the present proceedings before this Court. Shri N.C. Garud, learned counsel appearing for respondent No.5 submitted to 7 the orders of the Court and also did not press for any costs. 9. Considering the submissions made by the learned counsel for the parties, at the outset, considering the provisions of Section 148 of the Code of Civil Procedure, there is no doubt that even though the period of payment of costs was expired on 14.11.2005, it would have been enlarged/ extended till 18.11.2005 by the learned Judge under Section 148 of the Code of Civil Procedure in the interest of justice under his own discretion, more particularly since the petitioners were ready and willing to deposit the said costs of Rs.300/- on the very day i.e. on 18.11.2005 itself as stated by them in the application (Exh. 11) and accordingly, the said application (Exh. 11) could have been allowed by the learned II Adhoc Additional District Judge, Beed there and there only. Apart from the said position, the aspect which was pointed out by Shri A.H. Vaishnav, learned counsel for the petitioners that the order was passed on 11.11.2005; and 12.11.2005 and 13.11.2005 being Second Saturday and Sunday, were holidays to the office of the Court, also cannot be overlooked and apparently, the 3 days period was too short to make the payment of costs. No doubt that the petitioners have not preferred the application for extension of time but submitted on 18.11.2005, and in the said context, on 14.11.2005, the difficulties expressed by the petitioners in application (Exh. 11), that the petitioner is suffering from heart disease and submission made across the bar that his Advocate who was looking after the said proceedings at District Court, Beed used to practise at Patoda, also cannot be ignored. 8 10. It is settled principle of law that the justice should not be defeated due to the technicalities and, therefore, considering the facts and circumstances, the petitioners/ appellants are required to be given an opportunity to deposit the costs of Rs.300/- in the District Court, Beed to do the substantial justice to the parties since substantive rights of the parties are involved therein and hence, the present Civil Revision Application is required to be allowed in the interest of justice, but subject to payment of reasonable costs to the respondent No.1, in addition to the costs of Rs.300/-, awarded by learned II Adhoc Additional District Judge, Beed, vide order dated 11.11.2005 and the said reasonable costs can be quantified at Rs.500/-, within the reasonable period as directed hereinbelow. 11. In the result, present Civil Revision Application succeeds and same is allowed in terms of prayer clause (A) thereof, subject to payment of additional costs of Rs.500/- to respondent No.1. Petitioners are permitted to deposit costs of Rs.300/- as directed by learned II Adhoc Additional District Judge, Beed, vide order dated 11.11.2005 and additional costs of Rs.500/- awarded by this Court today before the District Court, Beed, within a period of ten days from the date of receipt of the writ from this Court. Rule made absolute in above terms. (Shrihari P. Davare, J.)