M/S. DAROLO AND ASSOCIATES THROUGH ITS PARTNERversusUNION OF INDIA AND ORS.

2026:BHC-AS:17925

                                                                 14-WP-1475-2019.docx


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION
                            WRIT PETITION NO. 1475 OF 2019
   Swapnil
               M/s. Darolo and Associates
               Through Its Partner.                             …Petitioner
                    Vs.
               Union Of India and Ors.                    …Respondents
                                              WITH
                             WRIT PETITION NO. 10734 OF 2019

               Mr. S. C. Wakankar for the petitioner.
               Mr. Aryanraj A. A. i/b. N. R. Bunba for respondent no.1
               Dr. G. R. Sharma a/w. Mr. Gaurav Sharma, Mr. Rushikesh
               Tondwalkar for respondent no.3.


                                       CORAM : GAURI GODSE, J.

                                       DATE :        31st JULY 2026

               ORDER :

               WRIT PETITION NO. 1475 OF 2019

               1.    This writ petition is filed by the original plaintiff no.1 to

               challenge the order passed by the trial court dismissing the

               application for condonation of delay in applying for

               restoration of the suit against defendant nos. 1 and 2.


               2.    The suit was dismissed on 1 st July 2014 against

               defendant nos. 1 and 2 for not taking any steps to serve

               them. After a period of more than four years, an application

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was filed for condonation of delay in filing the application for

restoration of the suit against defendant nos. 1 and 2 along

with the application for restoration of the suit. For want of any

satisfactory explanation for condonation of delay, the

application was rejected. Hence, this writ petition.


3.    After hearing the parties, this court on 6 th February

2019 had directed the petitioner to produce documentary

evidence to show that the plaintiffs have disposed of all three

units by registered document and place on record the sale

deeds if the documents are executed. The petitioner was

further directed to place on record the documentary evidence

to show that they have carried out construction after

obtaining permission from the authorities.


4.    Learned counsel for the petitioner submits that in

compliance of the said directions, an additional affidavit of

the documents is filed. The copies of the three registered

sale deeds are produced on record. So far as the permission

for directions from the authorities is concerned, learned

counsel for the petitioner relies upon the order dated 6 th

August 1986 passed by the trial court in the suit permitting

the plaintiffs to carry out construction. The copy of the order


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is annexed to the additional affidavit. Learned counsel for the

petitioner, therefore, submits that there is due compliance of

the directions issued by this court.


5.    For supporting the submissions for condonation of

delay, learned counsel for the petitioner relies upon the

contents of the application. He submits that the record was

required to be reconstructed. He further relies upon the

averments made in the application before the trial court that,

as per Exhibits ‘9’ and ‘10’, the trial court had issued suo

moto notice to the plaintiff as well as defendants. He,

therefore, submits that if the notice issued by the court was

served, the plaintiffs were not required to take further steps.

He submits that the presence of defendant nos. 1 and 2 is

necessary to decide the prayers in the suit, as in the absence

of defendant nos. 1 and 2, the prayers seeking declaration

regarding the ownership of the property cannot be

adjudicated. He, therefore, submits that in view of the

contentions raised in the application for condonation of delay,

the trial court should have considered it liberally, as the

plaintiffs’ rights on the merits would be affected if the

presence of defendant nos.1 and 2 is not secured. He,



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therefore, submits that the impugned order be set aside and

the suit be restored against defendant nos. 1 and 2.


6.    I have perused the papers of the writ petition and the

additional affidavit. The order relied upon by the learned

counsel for the petitioner is an order modifying the earlier

direction for maintaining status quo. The plaintiffs were

permitted to make a construction subject to the available FSI

and the new scheme and payment of freehold charges. The

arguments made on behalf of the petitioner that in view of

this order no further permission of the authorities was

necessary cannot be accepted. The trial court’s order

nowhere permitted the plaintiffs to carry out construction

without any appropriate permission from the appropriate

authority. This court vide order dated 6 th February 2019 had

directed the petitioner to place on record the documentary

evidence to show that the plaintiffs carried out construction

after obtaining permission from the authority. The additional

affidavit, therefore, cannot be accepted as due compliance of

the said directions issued by this court.


7.    Learned counsel for the petitioner has made an

alternate argument that, as pleaded in the plaint, the


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permissions were granted by the authorities. However, he is

unable to show the permissions.


8.   The trial court has refused to condone the delay for

want of any satisfactory explanation. The grounds raised on

behalf of the petitioner that as the court had suo moto issued

notice to the plaintiffs and the defendants, the notice must

have been served cannot be a ground for not taking steps for

more than four years. The trial court has observed in the

impugned order that even as per the statements made on

behalf of the plaintiffs, the grounds for condonation of delay

of more than four years cannot be accepted. It is recorded

that despite the suo moto order issuing notice, the plaintiffs

have not taken any steps to proceed and secure the

presence of the defendants.


9.   It is further recorded that unnecessarily the suit is kept

pending. Even in the present writ petition or the additional

affidavit of compliance, nothing is shown to support the

grounds for condonation of delay for more than four years. In

the absence of any explanation for the delay of four years,

the trial court has rightly refused to condone the delay. Non-

compliance with the directions issued by this Court would


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also be an additional ground for not exercising the

discretionary jurisdiction under Article 227 of the Constitution

of India to interfere with the impugned order.


10.    There is no illegality or perversity in the reasons

recorded in the impugned order warranting any interference

by this court.


11.    The writ petition is therefore dismissed.


WRIT PETITION NO. 10734 OF 2019

1.        This writ petition is filed by the original plaintiff no.2

to challenge the order passed by the trial court rejecting his

application to bring on record the names of the heirs and

legal representatives of deceased plaintiff no.1 as party

plaintiffs.


2.        The application to bring on record the parties as the

heirs of plaintiff no.1 is filed only on behalf of plaintiff no.2,

and the proposed plaintiffs have not applied to bring them on

record as the heirs of plaintiff no.1. The application is filed

with a prayer to condone the delay of more than 18 years

and 2 months. For want of any satisfactory explanation, the

application is rejected.


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3.       The application was opposed by defendant no.3 on

the ground that it was not bona fide and filed with

suppression of true facts. It was also objected on the ground

that the application is not signed by the heirs who are sought

to be brought on record.


4.       I have perused the papers of this petition. Nothing is

shown    before    this   court     that   the    heirs   and    legal

representatives of plaintiff no.1 had applied to bring them on

record. In the absence of any such application and in the

absence of any explanation for the delay of more than 18

years, the trial court has rightly refused to condone the delay.


5.       There is no illegality or perversity in the impugned

order warranting any interference in exercise of writ

jurisdiction under Article 227 of the Constitution of India.


6.       The writ petition is therefore rejected.




                                                 [GAURI GODSE, J.]




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