1 cac47.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.47 OF 2010 IN CIVIL REVISION APPLICATION NO.51 OF 2010 Bank of Baroda ...Applicant vs. Praveen D. Desai ...Respondent Mr.P.K.Hushing i/b Satpute & Co. for the applicant Ms Merlyn Monteiro for the respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 3, 2010 P.C. 1 Heard the learned counsel for the applicant. This is an application for condonation of delay in filing the revision application. The challenge in the revision application is to the Judgment and Decree dated 7th May 2004 passed by the Appeal Bench of Court of Small Causes. The respondent filed a suit for possession against the applicant. The suit was dismissed. In the appeal preferred by the respondent, aforesaid impugned Judgment and Decree was passed directing the applicant to hand over possession of the suit plot and directing enquiry under rule 12 of Order XX of the Code of Civil Procedure, 1908. For challenging the impugned Judgment and Decree, initially a writ petition under Article 227 of the Constitution of India was filed on 16th June 2009. Under the order of this Court dated 5th January 2010, writ petition was permitted to be converted into a revision application under section 115 of the said Code. In the order permitting conversion into revision application, this Court indicated that the date of 2 cac47.sxw filing the of the writ petition will be treated as the date of filing of the revision application. Thus, for challenging the Judgment and decree passed by the Appeal Bench of Court of Small Causes on 7th May 2004, a revision application was filed in June 2009. 2 The learned counsel for the applicant has invited the attention of the Court to the various averments made in the application. It is pointed out that in fact the applicant was never in possession of the suit premises as one of the employees of the applicant-bank was allowed to occupy the suit premises. Reliance is placed on a suit filed by the applicant against the employee in the Court of Small Causes. It is pointed out that in the suit, the applicant failed and it was held that the occupant being a sub tenant in possession prior to 1st February 1973, he has acquired status of a tenant of the respondent. It is pointed out that the decree passed by the Courts below against the applicant was confirmed by this Court on 25th October 2002 in the writ petition filed by the applicant. It is pointed out that in the year 2005, an application for mesne profits was filed by the respondent in terms of the impugned decree by alleging that the possession of the suit premises was handed over to the respondent in June 2004. It is submitted by the learned counsel that it is not known as to who handed over the possession to the respondent. It is pointed out that notice for mesne profits was dismissed and thereafter, same has been restored. The notice for mesne profit was dismissed on 26th April 2006 and was restored on 7th September 2006. It is submitted that the impugned Judgment and decree is illegal and there was no jurisdiction vested in the Court of Small Causes to pass the decree as the applicant has ceased to be a tenant and one Mr.Mohan become a direct tenant of 3 cac47.sxw the respondent. It is submitted that as the decree is without jurisdiction, there was no occasion to direct holding of an enquiry. 3 The learned counsel for the applicant also relied upon various decisions of this Court and Apex Court holding that a justice oriented and liberal approach is contemplated while dealing with application under section 5 of the Limitation Act. Reliance is placed on a decision holding that unless the conduct of the applicant is malafide, the Court has to adopt a liberal approach irrespective of the length of delay. The learned counsel for the respondent pointed out that mesne profits application has been contested by the applicant which has reached the stage of Judgment. 4 I have considered the submissions. Paragraphs 13 to 16 of the application read thus: 13 The applicants respectfully submit that by an order dated 7th May 2004 passed by the Division Bench of the Small Causes Court, it was ordered that the Applicants should hand over vacant and peaceful possession of the suit premises i.e. Flat no.1 in the building known as Panchshree, situated at C Road, Churchgate, Bombay 400020 to the respondent herein and to pay mesne profits. It is respectfully submitted that this aspect is highly inconceivable and cannot go together. 14 The applicants on receiving an intimation regarding restoration of the application for mesne profits had taken immediate action to challenge the proceedings by filing a writ 4 cac47.sxw petition in this Hon ble Court. 15 The matter was very old matter. The officers of the Bank get transferred from time to time in the routine course. The applicants officer have not realised the consequences of the said order dated 7th May 2004, and there was a bonafide mistake on the part of the applicant-Bank. The application for mesne profit was dismissed for default by an order dated 21st April 2006. The applicants after coming to know the restoration of the application for mesne profit had approached this Hon ble Court. 16 The applicants respectfully submit that in order to do substantial justice the delay deserves to be condoned. The respondents should not be allowed to take technical defences as it will result in injustice. 5 As stated earlier, for challenging the decree passed on 7th May 2004, a writ petition was filed in June 2009. The applicant had all along the knowledge that in the year 2005, the respondent filed an application for fixing the mesne profits on the basis of the impugned Judgment and decree. The said application was dismissed in the year 2006 and restored in the year 2006 as is evident from an annexure to the revision application. Mesne profits application was restored on 7th September 2006 and thereafter the applicant has participated in the proceeding of the application and has contested the said application. As stated earlier, the application for mesne profits was taken out by the respondent on the basis of the directions contained in the impugned decree. 5 cac47.sxw It is contended in this application that only after said application was restored in the year 2006, the applicant was advised to approach this Court. The Writ petition was filed after about three years from the date of restoration of the application. There is no explanation for this long delay. 6 Thus, even taking the averments made in the application as correct, there is a gross and unexplained delay on the part of the applicant in approaching the court. The applicant has participated in the proceedings taken out on the basis of the decree which is sought to be challenged now. 7 Therefore, even after adopting a liberal approach, such a gross and unexplained delay cannot be condoned. If according to the applicant the decree of the Court of Small Causes is a nullity, the said contention can be always raised in the pending proceedings for fixation of mesne profits which will be considered in accordance with law. 8 Subject to what is observed above, no case is made out. Application is rejected. JUDGE