MEERA KISHINCHAND KRIPALANI Vs. SANJAY PURSHOTTAM PATEL

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Small Causes Court at Bombay dated 31st August 1996 in Appeal No. 261 of 1994.

(2.) THE Petitioner filed suit against the Respondents for possession of flat previously known as flat no. 5 and presently numbered as flat no. 11 situated at 1st floor on the building Kangra Mandal Co-op. Hsg. Scy. Ltd. Plot No. 232, Annie Besant Road, Mumbai 400 018. The suit was filed before the Small Causes Court in the year 1975 on the ground of default, unlawfully subletting and defendants having acquired suitable residence. The suit was decreed by the trial Court on 25-8-1994. The defendant no. 2 - Respondent no. 1, who claims to be in occupation of the suit premises as tenant in his own rights, preferred appeal before the Appellate Bench of Small Causes Court being Appeal No. 261 of 1994. The appeal filed by the Respondent No. 1 was allowed and the decree of eviction was set aside by the impugned order dated 31st August 1996. Against the aforesaid order passed by the Appellate Bench of the Small Causes Court, Bombay, the Petitioner filed the present writ petition under Article 227 of Constitution of India on 20th August 1999. This writ petition came up for admission on 21st February 2000 in regular course, when the same was admitted exparte. After rule was granted by this Court, notice was served on the Respondents including Respondent No. 1. The Respondent no. 1 by way of application being C. A. No. 1024 of 2001 has raised preliminary objection with regard to the maintainability of writ petition. According to him the writ petition was hopelessly barred by laches and no sufficient much less plausible explanation has been offered by the Petitioner. According to the Respondent no. 1, the explanation offered by the Petitioner in para 17 is false to the knowledge of the Petitioner. At this stage it is relevant to mention that the present writ petition has been presented by C. A. of the Petitioner Shri. T. A. Idnani. The Petitioner in response to the Civil Application has filed reply affidavit and has opposed the objection raised on behalf of the Respondent no. 1. According to the Petitioner, due to unavoidable circumstances the Petitioner could not attend to the present matter whereby delay of almost 3 years has occasioned.

(3.) SINCE preliminary objection has been raised in writing, the learned Counsel for the Respondent no. 1 was allowed to first address the Court with regard to the said objection; and I have not heard the Counsel for the Petitioner on merits of the case. After considering the rival submissions, I find that the explanation offered by the Petitioner for delay of almost 3 years is absolutely unstable and cannot be countenanced. In para 17 of the writ petition, the Petitioner has taken a stand which reads thus;