1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1189 OF 2008 IN APPEAL FROM ORDER NO.632 OF 1999 Ajit Gopaldas Thakkar ...Petitioner Versus Manoharlal Mukundchand Valecha (Since Deceased) through unknown Legal Heirs & Ors. ...Respondents Mr. J. M. Reis i/b. Mr. Rajesh N. Kachare for the Petitioner. Mr. M. S. D’mello for Respondent Nos. 2a to 2c and 3. Mr. Suresh Rajeshwar for Respondent No.4. CORAM : R. V. MORE, J. DATED : 9th JULY, 2009. P.C.: Heard, Mr. Reis, learned Counsel for the Petitioner, Mr. D’mello, learned Counsel for Respondent Nos.2a to 2c and 3 and Mr. Rajeshwar, learned Counsel for Respondent No.4. 2. The present Civil Application is taken out for setting aside the abetment of the Appeal from Order No.632 of 1999 and condonation of delay occurred in taking out the said application. 3. The brief facts which gave rise to the present Civil Application are as follows: 1. The dispute is in respect of the property viz. Survey No.161 (Pt) Hissa No.1, Plot No.3 bearing CTS 1306, adm. 500 sq.yards Village-Eksar, District -Borivali (hereinafter for the sake of brevity called “the suit property”). 2 2. One Cliffton Bismark Gerald Tellis and the Respondent No.4 Mellis Vaz were the owners of the suit property. By an agreement dated 9th February, 1971 and 5th April, 1973, the said Cliffton Bismark Gerald Tellis agreed to sell the suit property to deceased Respondent No.1- Manoharlal Mukundchand Valecha and assigned his rights in the suit property, in favour of the purchaser. The said Manoharlal Mukundchand Valecha assigned his rights in favour of M/s. M.K.Developers by an agreement dated 6th October, 1986. M/s. M.K.Developers in turn by an agreement dated 23rd July, 1987 assigned their rights in favour of the present Petitioner. 3. The deceased Respondent No.1- Manoharlal Mukundchand Valecha filed Short Cause Suit No.2791 of 1981 against the legal heirs of Cliffton Bismark Gerald Tellis and Respondent No.4 in the City Civil Court at Bombay for specific performance of the agreements dated 9th February, 1971 and 5th April, 1973. In this suit, notice of motion was also taken out restraining the legal heirs of Cliffton Bismark Gerald Tellis and Respondent No.4 from creating third party interest in the suit property. The said notice of motion was made absolute. 4. The Short Cause Suit No.2791 of 1981 was dismissed for default on 15th February, 1999 and thereafter, restoration application was filed, which also came to be dismissed on 30th March, 1999. 5. Being aggrieved by the above order, the deceased Respondent No.1 filed the Appeal from Order No.632 of 1999 in this Court. The deceased Respondent No.1 took out the Civil Application and interim order restraining the original defendants in the said suit from creating third party interest in the suit property was also passed. 3 6. The Appeal from Order was dismissed as abetted by the order dated 28th February, 2005. The abetment order was passed as the Respondent No. 1-Manoharlal Mukundchand Valecha died long back in the year 1999, itself. 7. The present Civil Application was filed on 17th July, 2008 for setting aside the said abetment and for condonation of delay occurred in taking out the present Application under Order 22 Rule 10 of the Code of Civil Procedure, 1908. 4. Mr. Reis, learned Counsel for the Petitioner, submitted that the deceased Respondent No.1, assigned his rights in the suit property to M/s. M.K.Developers initially and M/s.M.K.Developers assigned their rights in favour of the Petitioner and therefore, the Petitioner is entitled to continue with the Appeal. So far as the delay is concerned, he submitted that for the first time he came to know about the death of Respondent No.1 in the month of March, 2008 and thereafter, at his earliest, the present Civil Application is filed. The learned Counsel for the Respondent Nos. 2a to 2c & 3, submitted that the initial two agreements were executed in the year 1971 and 1972 by Cliffton Bismark Gerald Tellis in favour of Respondent No.1 and in the said agreement the deceased Respondent No.1 was to perform his part within a period of six months and one year, respectively. He also disputed the assignment in favour of the present Petitioner by M/s. M.K.Developers. The learned Counsel for the Respondent No.4 submitted that the Respondent No.4 is the co-owner alongwith the said Cliffton Bismark Gerald Tellis and there is no privity of agreement between his client and the deceased Respondent No.1. He also submitted that the suit was abetted in the month of February 1999 and the present application is filed in July, 2008 and thus, delay is not sufficiently explained. 4 5. Having heard the learned Counsel for the respective parties, I find merit in the Civil Application. Firstly, I will consider whether the Petitioner is entitled to continue the proceedings in the Appeal: The agreement at exhibit “A” and “B” dated 9th February, 1971 and 5th April, 1973 respectively, do show that the original owner - Cliffton Bismark Gerald Tellis agreed to sell the suit property to the deceased Respondent No.1. There is no serious dispute about execution of these agreements. The agreements show that Cliffton Bismark Gerald Tellis agreed to sell the suit property on his behalf and also on behalf of the Respondent No.4. The agreement at Exhibit “C”, however, shows that the deceased Respondent No.1 assigned his rights to M/s. M.K.Developers and the agreement at Exhibit “E” discloses that M/s. M.K.Developers assigned their rights to the present Petitioner. Order 22 Rule 10 reads as follows: “10. Procedure in case of assignment before final order in suit – (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). In the above facts and circumstances and in the light of provisions of Order 22 Rule 10, I am prima-facie satisfied that the rights in the suit 5 property are assigned by the deceased Respondent No.1 in favour of M/s. M. K. Developers and M/s. M. K. Developers in turn assigned their rights in favour of the present Petitioner. The learned Single Judge of this Court in Jawaharlal Shivraj Lunkad versus Saraswatibai Babulal Joshi & Ors. reported in 1986 Mh.L.J. in paragraph 12 observed thus: “12. Having regard to the provisions of Order 22 Rule 10, Civil Procedure Code and the authorities to which I have referred, it is apparent that no detailed enquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution and the question about the existence and validity of the assignment or devolution can be considered at the trial of the suit on merits. This being the legal position the order passed by the learned trial Judge was correct and no interference with the discretion exercised by him is called for.” If the facts of the present case alongwith the observations of the learned Single Judge in Jawaharlal Shivraj Lunkad, Supra, is considered then, in my view, the Petitioner has made out case about his entitlement to continue with the Application. 6. This takes me to consider the question of delay occurred in taking out the application for setting aside the abetment. As stated above, the Appeal was abetted by the Order dated 28th February, 2005. The paragraph no. 16 of the Application reads as follows: “16. The Petitioner states that in the second week of March, 2008, the Petitioner visited the suit property for carrying out the site inspection and survey of the suit property. The Petitioner states that 6 at that time, the legal heirs of Cliffton Tellis viz. the Respondent No.3 herein came at the site and enquired with the Petitioner about the presence of the Petitioner at the suit property. The Petitioner informed the Respondent No.3 that the said Valecha has assigned, transferred all his right, title and interest in favour of M/s. M.K.Builders who in turn transferred their all right, title and interest in favour of the Petitioner. The Petitioner also informed Respondent No.3 that Valecha had filed suit against the Respondents and wherein initially ad-interim injunction was granted and subsequently the same was made absolute by an order dated 18th September, 1981. The Petitioner also informed the Respondent No.3 that in view of the injunction order the Respondent No.3 can neither interfere/enter into nor part with the suit property. 7. The case of the Petitioner seems to be that for the first time in the month of March, 2008 he acquired knowledge about abetment of the suit and thereafter, he filed the present application. It is settled principal of law that the Courts should adopt liberal approach in the matters of condonation of delay. Taking totality of the facts into consideration, in my view, sufficient cause is shown by the Petitioner for condonation of delay. 8. The learned Counsel for the Respondent No.4, in this regard, invited my attention to exhibit “E” i.e. agreement between M/s. M.K.Developers and the present Petitioner which discloses address of M/s. M.K.Developers and the present Petitioner is one and the same and therefore, submits that the Petitioner cannot be said to be unaware about the development of the Appeal. This submission, in my view, does not have any merit in view of the case of the Petitioner that in the year 1987 the office address of M/s. M.K.Developers and the present Petitioner may be same, however, presently the Petitioner is not conducting his business from that address. The submission of the Petitioner is substantiated by the address given in the cause title of the suit. 7 9. I accordingly, allow the Civil Application in terms of prayer clauses (a), (b), (c) and (d) except the bracketed portion of prayer clause (c). Necessary amendment to be carried out within a period of two weeks from today. Sd/- (R. V. MORE, J.)