1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 936 OF 2010 Hans Motors (I) Pvt. Ltd. ....Petitioners vs 1. Somani International Corporation & 2 ors. ....Respondents Mr. V.A. Thorat, Senior Counsel with Mr. G.S. Godbole, Mr. Mukul Taly & Mr. David i/b M/s. David & Associates for the Petitioner. Mr. P.S. Dani for the Respondent No.1. Ms. S.I. Shah for the Respondent No.2. CORAM : S.J. VAZIFDAR, J. DATE : 10TH MARCH, 2010. P.C. :- 1. This Writ Petition challenges the order of the Small Causes Court, dismissing the Petitioners application for condonation of delay in filing an appeal against the judgment and order dated 20th April, 2007, passed in T.E.&.R. Suit No.59/69 of 2002 filed by Respondent No.1 against the Petitioner and Respondent Nos.2 and 3 - M/s. Central 2 Warehousing Corporation and M/s. Venkatesh Processors, respectively. Respondent No.1, the Petitioner and Respondent No.3/M/s. Venkatesh Processors were Defendant Nos.1, 2 and 3 in the Suit. 2. Although a Court may be justified in certain cases of taking a liberal and even a lenient view while considering an application for condonation of delay, the impugned order, in the facts and circumstances of this case, rightly rejected the Petitioner’s application for condonation of delay. I decline to interfere with the order not merely in view of the fact that I am exercising jurisdiction under Article 227 of the Constitution of India, but because even on merits I am, with respect, entirely in agreement with the same. 3. One Somani & Company Private Limited is the owner of the suit property viz. a godown admeasuring 22,706 square feet in Mumbai. The first Respondent’s predecessor Respondent No.3 – M/s. Venkatesh Processors were the tenants. Respondent No.3 had entered into an agreement dated 20th April, 1977 by which they leased the suit premises to Respondent No.2 – Central Warehousing Corporation, on certain terms and conditions, including that the premises would be used for storage purposes. Respondent No.3 transferred the tenancy rights in favour of Respondent No.1. 3 4. Respondent No.1 alleged that Respondent No.2 had, in breach of the terms and conditions of the tenancy, illegally parted with possession of the Suit premises to the Petitioner. Respondent No.1, therefore, terminated the tenancy in favour of Respondent No.2 and called upon Respondent No.2 to hand over possession of the Suit premises. Respondent No.1 also addressed letters to the Petitioner, inter alia, alleging its wrongful induction in the Suit premises by Respondent No.2. The Petitioner, however, did not reply to the said letters. 5. In the circumstances, Respondent No.1 filed the said Suit against the Petitioner and Respondent Nos.2 and 3, inter alia, for possession of the Suit premises, a decree in the sum of Rs.20,57,740/- for wrongful occupation thereof, for mesne profits and interest on arrears at 18 per cent per annum. Respondent No.1 also contended that Respondent No.2 ceased to have the protection under the Bombay Rent Act with effect from 1st April, 2000 in view of the Maharashtra Rent Control Act, 1999. 6. The merits of the rival contentions, at least between Respondent Nos.1 and 2, are not important. Suffice it to state that by an 4 order and judgment dated 20th September, 2007, the Small Causes Court decreed the Suit. The Defendants, including the Petitioner, were directed to hand over quiet and peaceful possession of the said premises on or before 15th December, 2007. An enquiry was directed in respect of the mesne profits only against Respondent No.2. 7. Respondent No.2 filed Appeal No.291 of 2007 against the said order and judgment. The Petitioner was impleaded as Respondent No.2 in the said appeal. An advocate filed an appearance on behalf of the Petitioner in the appeal. The Petitioner was, therefore, fully aware of the proceedings at every stage. It, however, did not file an appeal at this stage. The appeal was dismissed by a judgment and order dated 12th August, 2009. 8. The Petitioner filed an appeal against the judgment and order dated 20th September, 2007, only thereafter on 14th September, 2009, and after a delay of 683 days. What is important is that this was not a case of a mere delay in filing the appeal. The Petitioner had obviously taken a conscious decision of adopting a wait and watch policy in the second Respondent’s appeal. There is no other explanation for the Petitioner not having filed its own appeal while at the same time, having in fact engaged an advocate in the appeal filed by the second 5 Respondent. 9. The reason for the Petitioner not filing an appeal is not far to see. The Petitioner claimed no independent right in the suit premises. The written statement establishes the same. In order to meet the first Respondent’s case that Respondent No.2 had illegally inducted the Petitioner in the premises, the Petitioner, in its written statement, stated that it had not been illegally inducted in the premises. The Petitioner stated that under an agreement dated 23rd March, 2001, the second Respondent had merely provided the warehousing facility in conformity with the nature of the business of warehousing being carried on by Respondent No.2 and in conformity with the lease agreement dated 20th April, 1977 entered into between the first Respondent’s predecessor viz. M/s. Venkatesh Processors/Respondent No.3 and Respondent No.2. The written statement is silent as to any other right of the Petitioner in respect of the suit premises. It is obviously for this reason that the Petitioner had not filed an appeal. However, when the time came for the decree to be executed, the Petitioner, solely with the intention of delaying the execution thereof, filed the appeal after a delay of almost two years. 6 10. This bring me to the affidavit in support of the application for condonation of delay. The Petitioner contended that its advocate went abroad before the judgment and decree was passed by the trial Court. There is, however, no explanation why there was not even an application for obtaining a certified copy of the judgment and order. The application for a certified copy was made only on 2nd September, 2009. The Petitioner also contended that one of its Directors was required to be hospitalised and had undergone a heart surgery and that another Director was also hospitalised and had also undergone an operation. Significantly, no documents were produced to establish these allegations. What is important is that the relevant documents were not produced despite the fact that the Petitioner had craved leave to refer to and rely upon the medical file. No such file was produced before the Small Causes Court. No such file was produced before me. 11. In the circumstances, the Writ Petition is dismissed. 7 The stay granted by the Appellate Court of the Small Causes Court on 6.1.2010 shall continue upto and including 30.4.2010. However the Petitioner shall not dispose of, alienate, encumber, part with possession of or create any third party rights, title and/or interest in, to, upon or in respect of the said premises, except in favour of Respondent No.1.