JUDGMENT

Milind N. Jadhav, J. - By the present Writ Petition, Petitioners have prayed for the following relief:

'b. After considering the legality, validity and proprietary of the same, Writ of Certiorari or any other writ, order, or direction in the like nature may kindly be passed thereby quashing and setting aside the order dated 03.01.2022 passed in Civil Miscellaneous application No. 56 of 2018 passed by the Ld. District Judge-2, Kalyan and Civil Miscellaneous Application No.56 of 2018 may kindly be allowed;'

2. Petitioners are challenging the Order dated 03.01.2022 passed in Civil Miscellaneous Application No. 56 of 2018, passed by Learned District Judge-2, Kalyan rejecting their application for condonation of delay of 5 months and 23 days in filing the Civil Appeal for challenging the judgment and decree dated 15.11.2017 passed in R.C.S No. 193 of 2022 by the Learned 5th Jt. Civil Judge Senior Division, Kalyan. Though it appears that delay of 5 months and 23 days is not condoned, and one would look at the reasons given for the delay, the facts in the present case are shocking and serious.

3. Such of the relevant facts which are necessary for adjudication of the lis between the parties are as under:

3.1. Original Plaintiffs (Respondent No. 1 to 3) filed suit No.193 of 2012 for seeking possession, arrears of license of fee and compensation/damages against Original Defendant No.1 - Rafique Malbari, Original Defendant No.2 - Bhimdas Jadha and Original Defendant No.3 - Milind Jadhav (Petitioner No.1 & son of Defendant No.2 herein) in respect the suit property i.e. room bearing chalta No. 589 (part) situated on the ground floor in Municipal House No.25 - Shambhu Building in Survey No. 1/3/3/C of village Mohone, Taluka Kalyan (herein refer to as a 'suit premises'). Suit was instituted against Defendant No.2 and Defendant No.3 (Petitioner No.1 herein) because they were found to be in possession of the suit property as they were servants of Defendant No.1 Petitioners are legal heirs of deceased Defendant No.2 who expired on 18.09.2016. Plaintiffs admittedly are owners of Municipal House No. 25 - Shambhu Building bearing Survey no.1 and Hissa No.3/3/C situated at village Mohone, Tal. Kalyan, Dist. Thane. There is no dispute about ownership.

3.2. Plaintiffs executed a leave and licence agreement dated 23.09.2003 with Original Defendant No. 1 (Rafique Malbari) for a period of 33 months with monthly compensation for an amount of Rs. 450/- excluding municipal taxes and other charges as per the terms and conditions mentioned in the Agreement which was registered with the office of the Sub-Registrar, Kalyan. The license would expire on 31.03.2006. Defendant No.1 was thus required to handover vacant and peaceful possession on 31.05.2006 to the Plaintiffs. Admittedly, Original Defendant Nos. 2 and 3 have no nexus with the Plaintiffs. They claimed to be servants of Defendant No.1. It has come on record that they have tresspassed into the suit property and are occupying the same since prior to 2006. How they have come into possession is still not explained by them?

3.3. Since the suit property was not vacated, Plaintiffs visited the site and found that it was in possession of Defendant No.2 and 3 i.e. Petitioner No.1 herein who were servants of Defendant No.1 at the them time and they were conducting business of lottery and building material suppliers. Suit filed against Original Defendant Nos.1 to 3 came to be decreed after a full length trial on 15.11.2017 by the Learned 5th Jt. Civil Judge Senior Division, Kalyan.

3.4. Petitioners aggrieved and dissatisfied with the decree filed Civil Appeal alongwith Civil Miscellaneous Application No. 56 of 2018 seeking condonation of delay of 5 months and 23 days in filing the Appeal. Petitioners also filed application below Exh.20 under Order 41 Rule 5 Code of Civil Procedure (for short 'CPC') for stay to the execution of the decree. No stay was granted in the Appeal, therefore Respondent Nos. 1 to 3 i.e. O