Bombay High Court
Shankarrao Ramchandra Bangar (Since ... vs Gulam Kadir Taki M.Ansari And Ors on 8 March, 2016
Author: M. S. Sonak
Bench: M. S. Sonak
skc J-CAW-521-16=475-14-WP-5527-15
THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 521 OF 2016
IN
WRIT PETITION NO. 5527 OF 2005
Shankarrao Ramchandra Bangar
since deceased through Lrs.
K. S. Bangar & Ors. .. Applicants
vs.
Gulam Kadir Taki M. Ansari
(since deceased through Lrs.
Kaniz Fatima Gulam Kadirig
Ansari @ Mangal A. Shishode & Ors. .. Respondents
AND
CIVIL APPLICATION NO. 475 OF 2014
IN
WRIT PETITION NO. 5527 OF 2005
Shankarrao Ramchandra Bangar
since deceased through Lrs.
K. S. Bangar & Ors. .. Applicants
vs.
Gulam Kadir Taki M. Ansari ( abated against)
& Ors. Resp.No.1) .. Respondents
Mr. Uday P. Warunjikar for Applicants.
Mr. Dinesh Chamboowala for Respondent Nos. 1 and 2.
Mr. S. D. Rayrikar - AGP for Respondent No. 3.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 02 March 2016
Date of Pronouncing the Judgment : 08 March 2016
1/12
::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 :::
skc J-CAW-521-16=475-14-WP-5527-15
JUDGMENT :-
1] Heard Mr. Uday Warunjikar for the Applicants, Mr. Dinesh Chamboowala for the Respondent Nos. 1 and 2 and Mr. S. D. Rayrikar - AGP for Respondent No. 3.
2] Civil Application No. 475 of 2014 seeks condonation of delay and restoration of Writ Petition No. 5527 of 2005, which was dismissed for non prosecution on 27 June 2013.
3] Civil Application No. 521 of 2016 seeks condonation of delay of over 12 months in bringing legal representatives of deceased Respondent No. 1 on record and if the delay is condoned, to bring such legal representatives on record.
4] The Writ Petition was initially dismissed on 24 June 2009 by the following order:
"P.C. :
1. Nobody appears for the petitioners though called out twice. This position has been continuing since the matter was adjourned on 17.6.2009. Writ petition stands dismissed for want of prosecution.
2. Any interim order passed to stand vacated."
5] Thereafter, by order dated 4 January 2013, the petition was restored. However, no orders were made with regard to restoration of interim relief which had been specifically vacated by the order dated 24 June 2009.
2/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15
6] Thereafter, on 27 June 2013, the Petition was once again
dismissed with costs of Rs.1,000/-. It was made clear that interim relief, if granted, stands vacated.
7] The Applicants filed Civil Application No. 475 of 2014 seeking condonation of delay and restoration on 27 November 2013. If the Roznama / Farad Sheet in Civil Application No. 475 of 2014 is perused, it is apparent that neither the Applicants nor their Advocates were present before the Registrar (Judicial) on number of occasions. No effective steps were taken in the matter of service upon the Respondents. On 17 February 2014, the matter appeared before the Court but none appeared for the Applicants and the matter was adjourned to 3 March 2014 by way of last chance. The matter thereafter appeared before the Registrar on 18 March 2014, 15 April 2014 but none appeared for the Applicants. The position was the same on 12 August 2014, 19 September 2014, 30 September 2014, 29 October 2014, 5 January 2015.
8] On 5 January 2015, although, none were present, the Registrar (Judicial) made the following order:
" Respondent No. 1 reported to be dead as per Bailiff report dated 10.03.2014. His legal heirs are not brought on record till today. Hence, C.A. stands abated against 3/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 Respondent No. 1.
Respondent No. 4/ P.N. Menkudale is reported to be dead as per Bailiff report. Hence, the Petitioner to take necessary steps against Respondent No. 4.
S. O. for five weeks."
9] Thereafter, the matter came up on 9 February 2015, 9 March 2015, 6 April 2015, 9 April 2015 but neither Applicants nor their Advocate appeared before the Registrar (Judicial). The matter was taken up before this Court on 18 April 2015 but again, none appeared for the parties.
10] On 16 September 2015, the learned counsel for the Applicants stated that he has received death certificate of Respondent no. 1 only on 14 September 2015 and he applied for time to take steps. Accordingly the matter was adjourned to 30 September 2015.
11] Thereafter, for considerable period, no steps were taken even to bring on record the legal representatives of Respondent No. 1 or to effect service upon unserved Respondents.
12] Since, the main Writ Petition had been dismissed by order dated 27 June 2013 and the interim relief therein vacated, the Respondent No.2 applied for execution. The execution was 4/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 attempted by the Bailiff on 25 January 2016. The Bailiff's report, amongst other matters, records that the Applicants contacted their Advocate telephonically and informed the Bailiff that stay order has been granted by the High Court in this matter and therefore, the execution may not to proceed. The Bailiff, it appears, granted some time to produce the copy of the stay order. It is pertinent to record that as on 25 January 2016, there was no stay order either granted by this Court or in operation.
13] On 22 February 2016, it appears that execution was once again attempted by the Bailiff. The Bailiff, in his report, has stated that he was physically prevented from executing the orders made by the Civil Court. Mr. Warunjikar, upon reference to the Bailiff's report has submitted that the Bailiff's report merely states that the Bailiff was pushed outside the premises and this is not the same as manhandling the Bailiff. The submission is obviously misconceived.
14] On 23 February 2016, obviously, after the attempts at execution on 25 January 2016 and 22 February 2016, the Applicants have filed Civil Application No. 521 of 2016 for seeking to bring on record the legal representatives of deceased Respondent No. 1. There is delay of over 12 months in taking out this application.
5/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15
15] The learned counsel for the Respondent No. 2 has pointed
out that the original dates upon the Civil Application are September 2015. This means that the applications were kept ready in September 2015 but not filed for inexplicable reasons. There appears to be substance in the contention of the learned counsel for the Respondent No.2 that the Applicants are only interested in keeping the matter pending for one reason or the other and on the basis of the pendency resisting execution, if necessary, by use of physical force. There is absolutely no explanation as to why, no application for bringing the legal representatives of deceased Respondent no. 1 was not made earlier. In the order dated 5 January 2015, it is clearly recorded that the Bailiff's report dated 10 March 2014 indicates that the Respondent no. 1 has expired and therefore, there is abatement against the legal representatives of the Respondent no. 1. The learned counsel for the Applicants specifically stated before this Court on 16 September 2015 that steps would be taken to bring on record the legal representatives of the Respondent no.1 now that they have obtained the copy of the death certificate. Despite all this, no steps were taken and there is delay of over 12 months.
16] In Civil Application No. 521 of 2016, prayer clause (b) is blank
6/12
::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 :::
skc J-CAW-521-16=475-14-WP-5527-15
to the extent it does not state the quantum of delay. Delay is well over 12 months. There is absolutely no explanation with regard to such delay. In the Civil Application, at paragraphs 3 and 4, vague statements have been made that the Applicants became aware of the death of the Respondent no. 1 after the notice was returned unserved to this Court with the remark that Respondent no. 1 has expired. The notice was returned unserved, according to the order made by the Registrar (Judicial) on 10 march 2014. There is no explanation whatsoever with regard to the inordinate delay in taking steps to bring on record the legal representatives of the Respondent no. 1. In fact, vague statements have been made in the Civil Application perhaps realizing that there was absolutely no cause, much less any sufficient cause for such inordinate delay. Besides, there is no explanation as to the discrepancy of dates. It does appear that the application was ready in September 2015 but was filed only on 23 February 2016 that too after physically preventing the Bailiff to execute the decree on 25 January 2016 and 22 February 2016.
17] Without disclosure of true and correct facts, this Court on 24 February 2016, was persuaded to take up Civil Application No. 521 of 2016 at the stage of production and make an order of status quo.
All that was represented was that execution is imminent and 7/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 therefore, protection is necessary.
18] Since, there is absolutely no cause shown in the Civil Application No. 521 of 2016 for the delay and further, the conduct of the Applicants as evident from the manner in which they have pursued the proceedings in the main petition, application for restoration, as also the present petition, there is no case made out for condonation of inordinate and unexplained delay. The conduct of the Applicants is also such as disentitles them to any discretionary relief. The Applicants informed the Bailiff that there was a stay order in operation, when in fact, there was none. The Applicants have physically prevented the Bailiff from executing the Court decrees.
For all these reasons, Civil Application No. 521 of 2016 is hereby dismissed.
19] The Civil Application No. 475 of 2014, which is for restoration of the Petition and for condonation of delay is also liable to be dismissed. In the first place, as indicated in the Roznama / Farad Sheet, the Applicants have not been taking steps to serve the unserved Respondents despite grant of several opportunities.
Further, the Civil Application is already ordered to be abated as against the legal representatives of deceased Respondent No. 1.
On account of dismissal of Civil Application No. 521 of 2016, this 8/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 order of abatement has attained finality, at least in so far as this Court is concerned. The Writ Petition was dismissed on 27 June 2013. Restoration was applied for on 27 November 2013 and that too, after considerable delay. Now, we are in March 2016 and till date, the Applicants have not taken steps to serve the Respondents. But rather, have permitted the application to be abated as against the legal representatives of the Respondent No.
1. The reasons set out in the application seeking restoration hardly inspires any confidence. Considering that the Petition had been dismissed earlier on one occasion, it was necessary for the Applicants to be more diligent in the matter. The Applicants have been far from diligent. The lack of diligence on the part of the Applicants is evident, from the manner in which the Applicants have failed to take steps to complete service in Civil Application No. 475 of 2014. For all these reasons, Civil Application No. 475 of 2014 is also hereby dismissed.
20] On 24 February 2016, when this Court was persuaded to grant status quo, Mr. Warunjikar had contended that after the Petition was dismissed on 24 June 2009 and the same was restored on 4 January 2013, interim order granted by this Court on 24 August 2005 was in operation. However, if the order dated 4 January 2013, by which, the Petition was restored is perused, there 9/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 is no specific order reviving the interim relief already granted, even though, the order dated 24 June 2009 by which the Petition was dismissed, had made it clear that interim order stands vacated. In any case, by order dated 27 June 2013, the Writ Petition was once again dismissed for non prosecution with costs of Rs.1,000/- and the interim relief, if any, was vacated.
21] Mr. Warunjikar submitted that once a petition is restored, automatically, the interim orders made therein, revive. In this regard, he placed reliance upon the decision of the Hon'ble Apex Court in the case of Vareed Jacob vs. Sosamma Geevarghese & Ors.1 In this matter, it is not necessary to decide this issue, particularly since on 24 February 2016, there was no interim order in operation, since, the petition itself had been dismissed on 27 June 2013 and the interim order, if any, vacated. The order dated 27 June 2013, till date, has not been set aside. That apart, the Hon'ble Apex Court in the case of Vareed Jacob (supra) has approved the decision in the case of Shivaraya vs. Sharnappa2. In fact, the said judgment has been quoted in paragraph 17, which is a part of the majority judgment and the same reads thus:
"17. In the case of Shivaraya v. Sharnappa it has been held that the question whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit 1 (2004) 6 SCC 378 2 AIR 1968 Mysore 283 10/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored. If the court dismiss the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders. This was a case under Order 39."
22] In the present case, the Petition was dismissed for default on 24 June 2009 and this Court had specifically vacated the interim relief. Thereafter, by order dated 4 January 2013, no doubt, the Petition was restored but there was no order made with regard to restoration of interim reliefs. If, therefore, the principle in Shivaraya (supra) is to be applied, then, it cannot be said that the interim relief had been restored in this matter. In any case, this issue, does not really arise in the present matter, since, by order dated 27 June 2013, the Petition was once again dismissed for non prosecution and the interim orders were vacated. The application for setting aside the order dated 27 June 2013, has since been dismissed.
23] Accordingly, Civil Application No. 475 of 2014 as well as Civil Application No. 521 of 2016 are hereby dismissed with costs assessed at Rs.5,000/-. The status quo order granted on 24 February 2016 is also vacated.
Chandka (M. S. SONAK, J.) 11/12 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 ::: skc J-CAW-521-16=475-14-WP-5527-15 24] At this stage, the learned counsel appearing for the
Applicants seeks for continuation of status quo order granted on 24 February 2016 for a period of six weeks.
25] The records would indicate that the main petition was dismissed on 27 June 2013. From that date onwards, there were no interim orders in operation. The circumstances in which the status quo order was made on 24 February 2016 have already been referred to in the order. In these circumstances, the request for continuation of status quo order is declined.
Chandka (M. S. SONAK, J.)
12/12
::: Uploaded on - 08/03/2016 ::: Downloaded on - 31/07/2016 08:09:20 :::