JUDGMENT
J.G. Chitre, J.
1. Some facts need to be disclosed for the purposes of unfolding the matter and the controversy. The land in question are Survey Nos. 499/1, 498/11, 513/8 and 500/5 which are now consolidated in Gat No. 1023 admeasuring 3 Hectares and 41 Ares, situate at village Charegaon, Taluka Karad (hereinafter referred to as the suit land for convenience). Deceased Pandurang Dnyanu Bendre was the predecessor in title of respondents Nos. 1 to 4 and was the original landlord of the suit land. Deceased Dinkar Ananda Mane, father of the present petitioner, was the tenant of half portion of the land. Deceased Pandurang Dnyanu Bendre had obtained exemption certificate in view of provisions of Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Bombay Tenancy Act” for convenience) and had obtained an order of possession of his share in Gat No. 1023 by instituting a proceeding under Section 33B of the Act. An order was passed in Tenancy Case No. 72/1972 on 30-6-1973. The said order was challenged by the tenant by filing Tenancy Appeal No. 15/1975 and it was decided on 9-10-1978. Original landlord died on 10-1-1984. The appeal was dismissed on the ground that it was preferred against dead person. The tenant thereafter preferred a revision application before the MRT, Pune being No. MRT/NS/X/8/79(TNC-B303/79), which was also rejected by the Tribunal on 10-11-1983. The tenant thereafter preferred Writ Petition No. 1866 of 1984 challenging the said order of the Tribunal in this Court. The said petition was finally decided on 8-2-1985 in which this Court Single Bench observed that the deceased Dinkar Mane should prefer a fresh appeal against the order dated 13-6-1973 against the heirs and LRs. of the original certificated landlord and was at liberty to move an application for condonation of delay, if so advised and the authority concerned should consider the same in accordance with law. In view of that, the present petitioners submitted an appeal bearing NO. 61/1985 before the Sub-Divisional Officer, Karad along with prayer for condonation of delay in filing the appeal. A challenge was made to the order passed in Tenancy Case No. 72/72 on 30-7-1973 by the Tenancy Awal Karkun, Karad. The Sub-Divisional Officer passed the judgment and order and held that there was no reason to condone the delay in filing the appeal. He pointed out that the present petitioners were not diligent in making the application for certified copy in time and they
were negligent in getting the copy or they did not make out a case for condonation of delay in view of Section 14 of Limitation Act. The appeal was dismissed on 7-4-1986.
2. The present petitioners filed a revision application before the M.R.T. Pune which was numbered as MRT-NS-IX-1/85(TNC-B-195/86). A prayer for condonation of delay was made. The Member of M.R.T. dismissed the said revision petition and also held that the judgment and order passed by Single Bench of the High Court was nullity as the tenant was not alive at the time of passing the said judgment and order. The learned Member of M.R.T. also held that the present petitioners were not prompt enough to prosecute the proceeding so also were not prompt enough in getting the certified copy within time. He also held that the case was not made out for condonation of delay in view of provision of Section 14 of the Limitation Act as the L.Rs. of original landlord were not brought on record within time. The Member also held that the Petitioners were not diligent in filing Appeal No. 61 of 1985. He dismissed the said revision petition by observing that there was no ground for interfering with the order which was passed by the S.D.O. The said revision petition came to be dismissed on 3-11-1987 which was challenged by the present petition.
3. Mr. Naik appearing for the petitioner placed reliance on the judgment of Division Bench of this Court in the matter of Maruti Namdeo Gade v. Dattatraya Vishnu Maval, reported in 1977 Maharashtra Law Journal page 848 wherein the Division Bench held :–
“Ordinarily, with the death of the landlord during pendency of the tenant’s appeal of revision against an order of resumption, the very foundation of the claim gets extinguished and the tenant has hardly anything further to make out to succeed as against the heirs, but the right of a certificated landlord being heritable, the proceedings initiated by the deceased landlord have got to be allowed to be continued by his heirs enabling them to exercise such right. This necessarily excludes the application of the abatement rule applicable to personal actions. This ordinary rule of lis being decided on the facts as existing on date of initiation thereof is rendered inapplicable to such situations. Rather situations like this attract powers of Courts whether at original, appellate or revisional stage to take notice of post-suit-developments and do complete justice between parties and mould relief in the light of subsequent developments which render granting of original relief impracticable or unsustainable. Though an order of possession passed in favour of the landlord cannot be sustained if the landlord dies during pendency of the litigation, the claim cannot also be rejected without inquiry into the holdings and bona fides of the heirs. Though, therefore claims under Section 33-B, Bombay Tenancy and Agricultural Lands Act are also of a personal nature, proceedings do not abate on the death of the claimant but enure for the benefit of the heirs, but the heirs cannot succeed in claiming resumption unless they proved their personal qualifications as to bona fides and holdings by reference to the date of their being brought on record which would be deemed to be date of their application. This would be so without regard to whether the landlord dies
before or after succeeding at any stage. In either case resumption is not permissible unless claimant proves his personal qualifications. The question of defending the estate and benefits arising thereto under a decree cannot arise till the litigation goes through all stage at the choice of the parties and order becomes final and immune from interference.”
In the same judgment, Mukhi J. added his further opinion by observing :–
“In considering the question of limitation as to whether an appeal or revision is in time what the relevant authorities have to consider is not only whether the order appealed against was communicated to the parties but also when the parties actually came to know about the particular order. Formal communication is not the criteria. If it could be shown that the parties concerned had knowledge of the making as well as the contents of the order appealed against then limitation must run notwithstanding that a formal communication has not been effected.”
4. In the present case, keeping in view the ratio of the judgment of the Division Bench of this Court, the Member of the Tribunal was obviously in error in coming to the conclusion that the judgment of the High Court in the matter of Writ Petition No. 1866 of 1984 was nullity because at the time of passing of the judgment and order by the High Court, the original landlord was not alive and it was a judgment passed against a dead person leave aside the improperness of the language used.
5. In view of the judgment of the Division Bench of this Court in that lis an enquiry was necessary for the purposes of ascertaining whether the L.Rs. of deceased certificated landlord were having their own bona fides for supporting their claim of holding of the suit land as they had inherited the said right of certificated landlord. They were to prove their personal qualifications as to bona fides and holdings by reference to the death of their being brought on record as L.Rs. of deceased certificated landlord and unless that was proved, the resumption was not permissible in law. Therefore, in view of that, the enquiry was very much necessary to be done. In addition to that, a prayer was made in the appeal memo which was preferred by the present petitioners before S.D.O. The same prayer for condonation of delay was reiterated. It is true that it was not by way of separate application and it was not studded with number of words. The sum and substance of the prayer was that the petitioner or his source of inheritance was agitating the lis in the Court. Therefore, the time spent in litigating the said lis was definitely condonable in view of settled principles of law dealing with condonation of delay. In addition to that, it was indicated that on account of poverty and as the petitioner was not able to come to Mumbai, there was delay in obtaining the certified copy of the judgment enabling him to prefer an appeal before the Sub-Divisional Officer. This important aspect of the matter has been ignored by the S.D.O. and that was also further ignored by the Member, M.R.T. Both these forums ignored the observations of this Court for indicating as to what should be the criteria for considering the prayer for condonation of delay. Though that was not the direction given to the forums below, nonetheless its tone could not have been ignored.
6. While considering the prayer for delay condonation, the Court has to take a broader view and has to acquaint itself with realities of life. When, like the
present case, enquiry is necessary, the prayer for delay condonation acquires more strength. Unfortunately, this aspect of the matter was not properly considered by the M.R.T, and, therefore, it repeated the error which was committed by the S.D.O. which did not consider the prayer for delay condonation properly and did not allow it.
7. Thus, the present petition has focussed such an aspect of the litigation whereby, by its inherent strength, the prayer for delay condonation deserved to be allowed. Thus, in the interest of justice, this Court quashes the judgment and order passed by the M.R.T. which is being assailed by this petition and so also the judgment and order passed by the S.D.O, which was challenged before the M.R.T., Pune. This petition stands allowed with no order as to costs. The writ of certiorari stands issued in favour of the petitioner. Rule is made absolute accordingly.
8. The appeal which has been dismissed by S.D.O. stands restored to its same number by condoning the delay. The S.D.O. is hereby directed to hear and decide the appeal after making due enquiry by himself or by competent authority.
9. Record be dispatched to the S.D.O. Karad, as early as possible.
10. Parties to act on ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.
11. Certified copy expedited.