LAXMIBEN CHHOTUBHAI Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) The applicant has filed Civil Application No.67 of 2023 seeking condonation of delay of 5 days in preferring the appeal. In the normal course, we would have straightaway condoned the delay if the parties had appeared. Since it is still at the nascent stage of issuing notice, we have examined the order dtd. 15/2/2022 which has been challenged in the accompanying F/Letters Patent Appeal No.10876 of 2022 to ascertain as to whether any iota of case has been made out by petitioners for issuance of notice either on the application for condonation of delay or on the appeal and we find there is none. In fact, the learned Single Judge in paragraph 2 has clearly observed that petition itself was liable to be dismissed with costs and on account of sincere apology tendered by the learned advocate appearing for the petitioners, Special Civil Application has not been dismissed with costs but has proceeded to consider the claim of the petitioners on merits and has rightly found that averments made in the petition are bereft of material particulars. It has been observed by the learned Single Judge as under :

(2.) Apart from the above findings recorded by the learned Single Judge, we also notice that petitioners themselves admit in the petition that construction has already been put up by respondent No.5 over the disputed property. If it is so, remedy available to the petitioners is before the Civil Court and not invoking extraordinary jurisdiction of this Court viz. Article 226 of the Constitution of India. We do not find any other good ground also to issue notice to respondents as issuance of such notice, calling upon the respondents to file their reply to the same would only be a fruitless exercise which may have to be undertaken by this Court and even if such exercise is undertaken, ultimate result would be the dismissal of petition which has been done by the learned Single Judge. Hence, at the threshold itself, we dismiss the application for condonation of delay. Consequently, appeal also stands dismissed. However, we make it clear that petitioners would be at liberty to work out their rights if any before appropriate Forum.