1 902 wp 4545.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4545 OF 2010 The Nav Madhuban Co-operative Society Ltd. .. Petitioner Vs. Mr. Dashrath Ramchandra Satav & Anr. .. Respondents Mr.Sudhir V. Sadavarte for the Petitioner. Mr. Madhav J. Jamdar for the Respondents. CORAM: K.K. TATED, J. DATE: 5th AUGUST, 2011 PC: 1. Heard the learned counsel for the parties. 2. Rule. 3. Rule made returnable forthwith. 4. By consent, matter is taken on board for final hearing at the stage of admission. 5. By this Petition under Article 227 of the Constitution of India, the Petitioner – original Plaintiff challenges the order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division, 2 902 wp 4545.10.doc Pune in Miscellaneous Application No.712 of 2007 rejecting the Petitioner’s Application for condonation of delay in filing the Review Application. 6. A few facts of the matter are as under: The Petitioner – original Plaintiff filed Special Civil Suit No. 1779 of 1996 in the Court of Civil Judge Senior Division, Pune for specific performance of contract. In the said civil suit, the Respondents – original Defendants preferred an Application below Exhibit-56 for dismissal of the suit for want of registration of the society i.e. Petitioner – original Plaintiff. According to the Respondent the Plaint has been filed and signed through its Chairman Mr.Sunil P. Josheph and Secretary Mr. Rajaram J. Lokhande. On behalf of the Society, the Respondent applied to the Public Information Officer i.e. the Assistant Registrar, Co-operative Housing Societies, Pune City, on 4th July, 2006 and sought information as to whether the Petitioner - Society is registered under the Maharashtra Co- operative Housing Societies Act or whether the Society is in existence. The Assistant Registrar, Co-operative Societies, Pune City has informed the Respondent – original Defendants’ advocate that no Co-operative Housing Society Ltd. having its 3 902 wp 4545.10.doc registered office at 561, Dhole Building, Kasba Peth, Pune is registered. On the basis of this information, the Respondents - original Defendants filed the said Application below Exhibit - 56 and same was allowed by IIIrd Additional Judge, Small Causes Court and Joint Civil Judge Senior Division, Pune on 28th September, 2006 dismissing the Petitioner’s suit as the Petitioner - Society is not registered under the Maharashtra Co- operative Housing Societies Act, 1960 and has no legal status. Thereafter, the Petitioner has filed Review Application under Order 9 read with rule 9 of the Civil Procedure Code in the court of Civil Judge Senior Division, Pune on 30th August, 2007. As there was delay in preferring Review Application, he preferred Application for Condonation of delay. The said Application was dismissed by the Joint Civil Judge Senior Division, Pune on 19th January, 2010 and hence, the present Petition. 7. The learned counsel appearing on behalf of the Petitioner – original Plaintiff submits that the impugned order dated 19th January, 2010 passed by the Trial Court in Miscellaneous Application no. 712 of 2007 is against justice, equity and good conscience and same is liable to be set aside. He submits that 4 902 wp 4545.10.doc the Trial Court erred in coming to the conclusion that Petitioner failed to make out any sufficient cause for condonation of delay. He submits that the Trial Court ought to have held that the Petitioner made out a sufficient cause in their Application for condonation of delay. He submits that the Trial Court failed to appreciate that when IIIrd Additional Judge passed order on Respondent’s Application below Exhibit 56 on 28th September, 2006, no one appeared on behalf of Petitioner. He submits that when the Petitioner learnt about the dismissal of the suit in the month of October, 2006, they contacted their advocate Mr.Shriniwasan. He submits that thereafter, the Petitioner immediately requested their advocate Mr. Shriniwasan to move application for the certified copy of the order passed by the Hon’ble Court. Accordingly, their advocate made an application for certified copies of order, on 1st November, 2006 and the same was received by the Petitioner on 23rd August, 2007. He submits that for want of knowledge about the dismissal order they could not prefer the Application immediately. He further submits that their office bearers i.e. Secretary and Chairman in between changed. He further submits that when they filed the suit, the same was filed through their Chairman Mr.Sayyed 5 902 wp 4545.10.doc Reza Mohammed and Secretary Mr. Kasam Gulzar. But after filing the suit both these persons were resigned and some other persons appointed in their place. He submits that in taking legal advise and taking a decision within the members of the society, there was delay in preferring the Application. On the basis of these submissions, the learned counsel appearing on behalf of the Petitioner submits that they have good chance for success in the matter and the Trial Court ought to have condoned the delay in preferring the Review Application. 8. On the other hand, the learned counsel appearing on behalf of Responents - original Defendants vehemently opposed the present petition. He submits that the Petitioner failed to make out any cause for condonation of delay. Therefore, the Trial Court rightly held that Petitioner is not entitled for any equitable order in condoning the delay in preferring the Review Application. He further submits that the Petitioner made false statement in their Application and on that ground also the Petitioner is not entitled for any relief in the present Petition. In support of these submissions, he relies on judgment in the matter of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others reported in AIR 1994 6 902 wp 4545.10.doc SCC 853. In that judgment, the Apex Court held that the person makes a false statement for obtaining any order from the court then he is not entitled any relief in his application. In para 7 of the judgment the Apex Court held as under: “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. 9. For opposing the present Petition, the Respondents filed their affidavit-in-reply dated 8th February, 2011. On the basis of these submissions, the learned counsel appearing on behalf of Respondents submits that there is no substance in the present Petition. He further submits that the Petitioner failed to make out any sufficient cause for condonation of delay in preferring the Application under Order 9 Rule 9 of the Civil Procedure Code and therefore, the Petition is liable to be dismissed. 7 902 wp 4545.10.doc 10. I have gone through the impugned order dated 19th January, 2010 passed by the trial court, Application filed by the Petitioner under Order 9 Rule 9 of the Civil Procedure Code, Application filed by the Petitioner for condonation of delay, Affidavit-in-reply filed by the Respondent. In the present case, Special Civil Suit no.1779 of 1996 was transferred from one court to other court and therefore, the office of the court issued the notices to both the sides. In the Notices issued to the Petitioner returned un-served with the Bailiff’s report “on the said address neither Petitioner’s registered office exists nor the person Mr. Sunil P. Joseph resides”. Considering the report of Bailiff, the Trial Court dismissed the Petitioner’s suit on 28th June, 2006. On that date, neither on behalf of Petitioner nor on behalf of Respondents anybody was present. Usually the clients always rely on their advocates. As and when advocate calls them for instructions they attend their office. In the present case, the Petitioner relied on the advocate that he will take care of their matter. But when in the month of November, 2006 they made enquiry with their advocate they learnt about the dismissal order dated 28th June, 2006 passed by the Trial Court. Thereafter, they contacted their advocate and asked the 8 902 wp 4545.10.doc procedure for restoration of the suit. At that time, the advocate informed them to bring certified copy of bye laws. In the meanwhile, they sought second opinion from other advocate who informed that it is not necessary to have a certified copy of bye laws for filing Application under Order 9 Rule 9 of the Civil Procedure Code. On the basis of the said opinion, they immediately applied for certified copies on 23rd November, 2006 and the same was collected on 8th February, 2007. As soon as they received the certified copy, they filed an Application for setting aside the dismissal order and for condonation of delay, on 30th August, 2007. It is admitted fact that there was a delay on the part of Petitioner to take immediate steps but the reasons disclosed by the Petitioner in their Application for condonation of delay and in the present Petition shows that the Petitioner made out sufficient cause for condonation of delay. These facts are not taken into consideration by the courts below. 11. It is to be noted that the Apex Court in the matter of N.Balakrishan vs. M Krishnamurty reported in 1998 (7) SCC 123 held that in the absence of anything showing malafide or 9 902 wp 4545.10.doc judicious delay for the general welfare, court should normally condone the delay. Para 11 of the said authority reads thus: “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” 12. The authority cited by the learned counsel appearing on behalf of Respondent is not applicable on the facts and circumstances 10 902 wp 4545.10.doc of the present case. In this case, the Petitioner relied on the advice given by their advocate and therefore, there is a delay in preferring the Application for setting aside the dismissal order dated 28th June, 2006. Considering these facts and the law laid down by the Apex Court, I am of the opinion that the impugned order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division, Pune in Miscellaneous Application No. 712 of 2007 is liable to be set aside. Hence, Writ Petition is allowed on following terms and conditions: a) The impugned order dated 19th January, 2010 passed by the Joint Civil Judge Senior Division, Pune in Miscellaneous Application No.712 of 2007 is set aside. b) Miscellaneous Application No.712 of 2007 dated 30th August, 2007 filed by the Petitioner for condonation of delay is allowed. c) Petitioner to pay a costs of Rs. 5,000/- to the Respondents within four weeks from today. (K.K.TATED,J.)