ORDER
S.B. Deshmukh, J.
Page 1070
1. Heard Mr. Brahme, learned Counsel for the petitioner and Mr. Mantri, learned Counsel for the respondent No.1.
2. Rule. Rule made returnable forthwith and taken up for final hearing with consent of the parties.
3. The petitioner, in this writ petition, was third party applicant, who had filed an application in special civil suit No.56 of 1990 (Special Civil suit No. 42 of 1979, which was earlier pending in the Court of C.J.S.D. Dhule), pending in the court of learned C.J.S.D. Nandurbar, for bringing himself on record as legal heir of deceased Jadavbai w/o Mishrilal Lalwani. It was the contention of the present petitioner, that the plaintiff Jadavbai resident of Nandurbar, was the mother of the applicant. Jadavbai died on 2.9.1998 at Nandurbar. The petitioner is the only legal heir of deceased Jadavbai. The petitioner needs to be brought on record as legal heir of deceased Jadavbai in the pending Special Civil Suit No.56 of 1990. This application has been filed by the petitioner on 7.7.2000. Alongwith this application, the petitioner had also filed another application seeking condonation of delay. The petitioner had gone to the State of Rajasthan since the property case was pending in the court in Rajasthan. Since, he was in Rajasthan, he was not knowing as to whether his mother deceased Jadavbai had filed some proceeding in respect of the property which she inherited from her father. This is the reason for the petitioner for not filing the application for substitution within the stipulated period. He also has referred to a publication in Daily newspaper “Uttar Maharashtra” on 31.5.2000. After reading this newspaper in relation to the house property i.e. plot situated at Nandurbar and the reference to the Special Civil Suit No.56 of 1990, the petitioner came to know about pendency of the said suit filed by his deceased mother. Thereafter, he applied for certified copy and came to know that his mother had claimed the partition and possession of the property, from her father and others. He has also referred the publication of public notice at his instance in daily newspaper “Nanddarshan” dated 10.6.2000.
4. The trial court considered both the applications filed by the petitioner at Exh.485 and 486. The trial court passed an order below Exh.486 and rejected the same by order passed on 7.10.2002. Based on this order, the trial court also proceeded to reject the application at Exh.485 on the dame day i.e. on 7.10.2002.
5. Learned Counsel Mr. Brahme has referred to the order of the trial court. Mr. Mantri has invited my attention to the finding recorded by the trial court in para 6 of the judgment. Mr. Mantri, has also brought to my notice Page 1071 that the petitioner earlier filed C.R.A. No.37 of 2003 challenging the very same order, which is impugned in this petition and later on said C.R.A. came to be withdrawn. He therefore, submitted that the petition deserves to be dismissed.
6. The order impugned in this writ petition undisputedly passed on 7.10.2002 by the learned C.J.S.D. Nandurbar below Exh.485 and 486 in Special Civil Suit No.56 of 1990. Section 115 of C.P.C. stands amended by Civil Procedure Code (Amendment) Act, 1999 and this amendment is made enforceable since 1.7.2002. Mr. Brahme submits that C.R.A. was filed on 8.1.2003. According to him, C.R.A. was under objection and after removal of the objection, it was numbered as C.R.A. 37 of 2003. On the date of amendment i.e. Section 115, on 1.7.2002, large number of C.R.As were pending in this Court at Bombay, Nagpur, Goa and Aurangabad. The scheme of Section 115, has been drastically amended. In this view of the matter, the petitioner chose to withdraw the revision application on 17.12.2004. It is true that withdrawal was unconditional and it is not mentioned in the order passed by this Court on 17.12.2004 that the petitioner is reserving his right to file writ petition, regarding order which was impugned in the C.R.A. However, the fact of amendment to Section 115 and the fact that revision No.37 of 2003 was pending, cannot be ignored. In this premises, present writ petition came to be filed by the revision petitioner, in this Court on account of amendment to Section 115 of C.P.C. This writ petition therefore, is very well maintainable, despite un-conditional withdrawal of C.R.A. No. 37 of 2003.
7. Learned Counsel Mr. Mantri also submitted that finding of fact that no explanation is tendered by the petitioner for condonation of delay is recorded by the trial court. According to him, this finding of fact is not open now to reconsider by this Court in exercise of power under Article 227 of the Constitution of India. Reference, to few judgments of the Apex Court is useful, for interpretation of expression “sufficient cause” under Section 5 of the Limitation Act. In the matter of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. , the Apex Court has laid down six guidelines. This judgment is referred to again by the Apex Court in the matter of N. Balakrishnan v. M. Krishnamurthy . The trial court rejected the application seeking condonation of delay under Section 5 of the Limited Act and this order is brought before this Court. The superior court can scrutinize the exercise of such judicial discretion by the trial court. If the superior Court comes to the conclusion that the discretion is not exercised judiciously by the trial court, the superior court can quash and set aside the order.
Page 1072
8. In the present case, application filed by the petitioner seeking condonation of delay is with details. The submission is made in application that the petitioner had gone to the State of Rajasthan in relation to some property matters. He was not aware of the Suit No.56 of 1990 filed by his deceased mother Jadavbai. He then referred to public notice published in the newspaper dated 31.5.2000 i.e. Daily “Uttar Maharashtra” and he came to know the pendency of suit and thereafter he has also referred to public notice in Daily newspaper “Nanddarshan” on 10.6.2000, at his instance. While considering the explanation tendered by the petitioner, it appears that the trial court in para 7 has observed that the applicant has totally failed to prove the case for condonation of delay. In short the trial court disbelieved the submissions made by the petitioner and had rejected the application of condonation of delay. It is not in dispute that the petitioner had persuaded the matter on account of publication of notice by advocate on 31.5.2000 in daily newspaper Uttar Maharashtra. In para 6 the trial court has made passing reference regarding non pendency of suit in Rajasthan. Another reason given by the trial court for rejecting application that the petitioner is the son of deceased Jadavbai and therefore, explanation tendered by him is not proper. In view of the fact that the contention of the petitioner that he had gone to State of Rajasthan, in my view, the explanation tendered by the petitioner ought to have been accepted by the trial court. The order impugned in this petition is perverse.
9. The learned Counsel Mr. Brahme submits that the Suit No.56 of 1990 was filed by mother of the petitioner. In this view of the matter, in my view, this petition can be allowed by setting aside the order of the trial court rejecting the application for condonation of delay for filing application for substitution of legal heirs. Inconvenience caused to the respondent can be taken care of by imposing appropriate cost.
10. In the result, The writ petition is allowed. The order passed by the trial court is set aside. Both the applications are allowed. The petitioner be brought on record, as legal heir of deceased Jadavbai. The said amendment to be carried out in the suit within a period of four weeks from today. Inconvenience caused to the respondent, can be compensated by saddling cost of Rs. 3000/- on the petitioner. Cost to be deposited in the trial court within four weeks from today.
11. Rule made absolute in the above terms.
12. Oral application of Mr. Mantri to stay this order stands rejected. Certified copy is expedited.