1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1496 OF 2009 *** Smt. Sulochanabai W/o Baburao Jadhav Versus Kamalbai W/o Papayya Golkunda through her legal heirs *** 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. This petition takes exception to the judgment and order passed by the learned District Judge-4, Aurangabad in MARJI No. 385 of 2008 dated 17th February, 2009. 4. There are some admitted facts, which are listed herein below: (i) Present petitioner was occupying the suit property as tenant. (ii) Respondent/ sole, since deceased, was the landlady, filed Rent Suit No.6t of 2001 in the competent Court, seeking eviction of the petitioner and possession of the suit property. (iii) Rent Suit NO.6 of 2001, after hearing the parties, came to be decreed by the Court concerned on 24th March, 2008. (iv) The Respondent/ decree holder filed execution petition i.e. R.D. No.104 of 2008 before the executing Court, seeking execution of the decree passed in Rent Suit NO.6 of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 2001. (v) The present Petitioner/ judgment debtor was served with the notice, issued by the executing Court. (vi) The executing Court issued warrant of possession against the petitioner. (vii) Allegedly, petitioner did not pay heed and, therefore, the decree holder Respondent, filed application seeking police help. Said application was allowed by the executing Court on 11th August, 2008. (viii) Decree passed in Rent Suit No.6 of 2001 came to be executed, meaning thereby possession of the suit property was taken over from the petitioner, through legal process by the decree holder Respondent. (ix) The petitioner/ judgment debtor filed first appeal before the first Appellate Court on 5th November, 2008, challenging the judgment and decree passed in Rent Suit NO.6 of 2001. This appeal was delayed. (x) Since the appeal filed by the petitioner/ judgment debtor was delayed, she filed application for condonation of delay which was registered by the first Appellate Court as M.A.R.J.I. No.385 of 2008. Delay of around 185 days was sought to be condoned. (xi) This application is rejected by the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. first Appellate Court and said order is impugned in this writ petition. 5. Counsel for the petitioner took me to application MARJI No.385 of 2008, filed, seeking condonation of delay. Two fold contention was raised in the application for condonation of delay. First, that, petitioner/ judgment debtor is an old lady, around 72 years old, was suffering from stomach-ache. Second ground raised was, she was not aware of passing of the decree, was not properly advised or was ill-advised by her counsel. On these grounds, delay was sought to be condoned. 6. During pendency of the appeal, Respondent died. Her heirs are brought on record. Reply affidavit on behalf of her legal heirs is on record, page 67. It is sworn in by one Smt. Triveni Golkunda. Counsel for the decree holder / Respondent took me to paragraph 7 of the reply affidavit. In this reply affidavit, after referring Panchanama prepared by the Process Server Bailiff, as per the Courts order, and in the presence of the Police Officer, it has been contended that the suit house was taken over from the possession of the present Petitioner and possession thereof was handed 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. to the Respondent/ decree holder, who was alive on that day. Counsel for the Respondent also took me to paragraph Nos.8, 9 and 10. Contention raised is that Petitioner did not come to the Court with clean hands. There is suppression of material facts. Petitioner was represented before the executing Court. She participated in execution proceeding. She was aware of the order passed by the executing Court granting policy aid, in favour of the decree holder. She has lost possession. Regarding her illness, submission is made that certificate placed on record and claim of the petitioner made in the application does not tally. According to counsel for the Respondent, logical inference, therefore, needs to be drawn in favour of the Respondent holding that claim of illness is not genuine. He, therefore, seeks dismissal of the writ petition, which is filed under extraordinary jurisdiction of this Court. 7. Learned Judge, while rejecting the application, observed that decree has been already executed, possession has been taken over from the Petitioner and handed over to the decree holder. Regarding illness, learned Judge has observed that pleading 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. alone is not sufficient and no document or other evidence is produced by the present Petitioner. Awareness of the petitioner, was of no significance, according to learned first Appellate Court, since decree has been executed. 8. Sufficient cause, an expression, occurring in section 5 of the Limitation Act, has been considered time and again by this Court and the Honourable Supreme Court. Length of the delay is not material. Court is concerned with the sufficiency of the cause tendered. In the case on hand, claim of the petitioner is that she is an old lady, 72 years old. Certificate is on record, page 32, issued by the medical officer concerned on 28th November, 2008. From this certificate, it is clear that petitioner was not admitted to the hospital. In other words, she was treated by the medical officer. Period given in the certificate is 7th April, 2008 to 10th October, 2008. Illness of the petitioner, mentioned in this certificate, is also considered by me. Certificate refers that the petitioner visited time to time for consultation and follow up. The pleading in the application, reply affidavit and certificate, if 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. considered together, in my view the learned Judge ought to have appreciated this ground. 72 years age itself is significant. Execution of decree and fact that possession was taken over from the petitioner and handed over to the Respondent cannot be a ground to shut the doors of superior Court to the aggrieved judgment debtor. Focus of the first Appellate Court ought to have been under section 5 of the Limitation Act. This ground, therefore, could not have been considered for turning down the application for condonation of delay. With the assistance of the learned counsel for the Respondent, I have seen various orders passed by the learned executing Court. From these orders, it is clear that the petitioner was served with the notice of execution, she engaged a lawyer, she contested the execution petition, she applied for time. Exhibit R-2 is the application of the Petitioner seeking time. It was granted on 14th July, 2008. Exhibit R-3, page 84, is also an application by the present petitioner, seeking time. I have also considered the order passed by the learned Judge, on this application, page 85. This application is rejected on 11th August, 2008. Exhibit R-4 is the application filed 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. by the Respondent Smt. Triveni dated 15th September, 2008. By this application, Respondent sought police protection for execution of the decree. Curiously, routine order, adhered to by the executing Court i.e. "other side to say", is not appearing on Exhibit R-4, application filed by the Respondent dated 15th September,m 2008 seeking police protection for execution of the decree. On this application, order passed by the executing court is at page 87 dated 18th September, 2008. Police aid was granted. Though it appears that the petitioner did participate in the execution proceeding, sought time for filing reply, with the assistance of learned counsel. When it comes to grant of police aid, there is no order passed by the learned Judge calling upon the petitioner to file say or reply. Let it be as it may. Reason, decree ultimately has been executed, is not a fact disputed by the present petitioner also. 9. Considering the totality of the circumstances brought on record and in view of the judgment of the Apex Court in the matter of "N. Balakrishnan V/s M. Krushnamurthy" reported in AIR 1998 S.C. 3222, in my view case for condonation of 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. delay is established. The judgment on the point of section 5 reported in the matter of "Collector, Land Acquisition, Anantnag and another V/s Mst. Katiji and others" reported in A.I.R. 1987 SC 1353, or any other judgment, either by this Court or of the Honourable Supreme Court, probably was not cited before the first Appellate Court nor the Court on its own referred to any of the judgment on section 5. 10. Considering the fact situation, I am inclined to allow this writ petition, but subject of payment of appropriate costs. Counsel for the Respondent suggest Rs. 5,000/-. Counsel for the Petitioner submits that she has no means of earning. In my view Rs.1,500/- would be the appropriate costs to be paid within two weeks. Amount to be deposited in the first appellate Court. 11. Petition is allowed. Order impugned is quashed and set aside. Delay occurred in filing first appeal in the first Appellate Court stands condoned, on condition that the petitioner shall deposit Rs.1,500/- in the first Appellate Court on or before 23rd March, 2010. On receipt of this amount, learned first Appellate Court shall register the appeal and decide the same in accordance 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. with the provisions of law. 12. This order is confined only to section 5 of the Limitation Act. The appeal shall be decided on its own merits. 13. Rule is accordingly made absolute in above terms. [S.B.DESHMUKH, J.] Dated:04/03/2010. ans/1496