SHANTIBEN JIVANGAR WD/O DECD JIVANGIRI HARIGIRI AND 6 ORS Vs. RAJGOR BHANUSHANKER NARANBHAI AND 3 ORS

JUDGEMENT

(1.) THE short facts of the case are that the suit was filed by trustees of Narmadeshwar Mahadev Temple against legal heirs of deceased Bavaji Jivangiri Harigiri, his widow and others for recovery of the possession of the suit premises and mesne profit for unauthorised utilisation of the premises. The basis of the suit was that deceased Bavaji Jivangiri Harigiri was doing puja work in the temple, but he had expired and thereafter, the trustees of the trust called upon them to vacate the premises allotted to his family member, but the premises was not vacated and therefore, the suit was filed and the compensation by way of mesne profit was prayed at Rs. 300/ - per month. In response to the summons issued by the Civil Court, the Defendants had appeared through their advocate and the matters were adjourned from time to time, but no reply was filed and therefore, right to submit written statement was closed. Thereafter, the learned Judge framed issues. The evidence was recorded and ultimately, the judgment and the decree was passed on 02.07.2002, whereby the Defendants were directed to handover the possession of the suit premises and it was further directed that they shall pay the mesne profit of Rs. 6,600/ - for 22 months, i.e. from 01.02.1996 plus notice fees of Rs. 250/ -, total Rs. 6850/ - and until the possession is actually handed over, they shall continuously pay the amount of Rs. 300/ - per month being the mesne profit for unauthorised utilisation of the property and also the expenses of Rs. 500/ - for cost of the suit. It appears that thereafter, the original Defendants -Petitioners herein preferred Civil Misc. Application No. 5/03 before the same court for setting aside of the ex parte judgment and the decree under Order 9 Rule 13 and under Section 151 of the Code of Civil Procedure. As there was delay in preferring the said application for setting aside of the ex parte judgment and the decree, the application for condonation of delay was also made. The Civil Court heard the application for condonation of delay and found that summons was duly served and the original Defendants had appeared and thereafter, the legal heirs were also brought on record and the matters were adjourned from time to time and inspite of the same, no written statement was filed and the Defendants were careless in prosecuting the matter and the ground of transferring the matter from one court to another could not be said to be sufficient since in the other court also where the matters were transferred, there were adjournments and therefore, it was found by the Civil Court that the application for condonation of delay is not made with bonafide and therefore, it has rejected the application. Under these circumstances, the present revision petition before this Court.

(2.) I have heard Ms. Desai for the Petitioners and Ms. Mandavia for the Respondents.

(3.) AS such, if the application for condonation of delay is taken into consideration, it appears that there was delay of 1 year 1 month and 5 days in preferring the application for condonation of delay.