JUDGMENT :

The captioned Civil Revision Application, is against the judgment and order dated 19.02.2013 passed by the learned 8th Additional District Judge, Rajkot in Civil Misc. Application no.84 of 2011 whereby, the learned Judge, has condoned the delay of 3382 days occurred in filing the appeal, challenging the judgment dated 17.05.2001 passed in Civil Misc. Application no.44 of 1999, rejecting the request for restitution of the possession.

2. The facts in brief are as follows:-

2.1 Sukhlalbhai Lajibhai Vadgama, was owner of a building situated near Pattani Hospital. Regular Civil Suit no.204 of 1980 was filed against one Chetankumar Mehta and respondent – Natvarlal Mavjibhai seeking recovery of the suit property on the ground that the respondent is trespasser and has no right, title or interest over it. The suit, was partly decreed; however, the possession was not granted.

2.2 Shri Sukhlalbhai Vadgama, sold the property to Rameshbhai N. Rathod and Kantibhai Narshibhai Rathod, i.e. petitioner no.1 vide registered sale deed dated 04.10.1990. Suit being Small Suit no.128 of 1993 was filed before the Small Causes Court against Chetankumar Mehta and the respondent for recovery and possession and arrears of rent. Vide judgment dated 02.09.1996, the suit was decreed and the defendants including the respondent were directed to handover the possession to the plaintiff by 30.09.1996. Apropos the Execution Petition no.27 of 1996, the possession of the suit property was handed over on 15.03.1997. After getting the possession of the suit property, Kantibhai Narshibhai Rathod – petitioner no.1, has let the suit premises to Chandulal Hirabhai Siddhpura – petitioner no.2 on 17.03.1997 and since then, the petitioner no.2 is in occupation and possession of the suit property.

2.3 The respondent filed Regular Civil Appeal under the provisions of sub-section (2) of Section 29 of the BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT , 1947 (hereinafter referred to as the ‘Rent Act’), challenging the judgment dated 02.09.1996 passed in Small Suit no.128 of 1993. Appeal, came to be partly allowed vide judgment dated 15.09.1998, which was subject matter of challenge before this Court by way of Civil Revision Application no.1503 of 1998.

2.4 On 17.06.1999, the respondent, filed a Civil Misc. Application no.44 of 1999 before the Small Causes Court, Rajkot under the provisions of Section 144 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘the Code’) for restitution of possession which came to be rejected vide order dated 17.05.2001. Simultaneously, a suit being Small Suit no.225 of 1999 was filed by the petitioner no.2 before the Small Causes Court, seeking declaration and permanent injunction against the petitioner no.1 together with application Exh.5, which came to be allowed vide order dated 30.05.2000 whereby, the injunction granted vide order dated 29.12.1999, was confirmed.

2.5 It is thereafter, that the petitioner no.2 purchased the suit property vide registered sale deed dated 24.02.2003 and subsequently, on 02.10.2006, the suit came to be withdrawn against the petitioner no.1. It is the case of the petitioners that the petitioner no.2, is in peaceful possession of the suit property since 17.03.1997.

2.6 As aforesaid, Civil Misc. Application no.44 of 1999 came to be rejected vide judgment dated 17.05.2001. Almost after a period of 10 years, the respondent, had filed Civil Misc. Application no.84 of 2011 before the 8th Additional District Judge, Rajkot challenging the judgment and order dated 17.05.2001 together with application seeking condonation of delay of 3382 days. The learned Judge, vide order dated 19.02.2013, allowed the application and condoned the delay subject to payment of costs of Rs.5,000/-, i.e. Rs.2,500/- each to the petitioner nos.1 and 2 respectively. Being aggrieved, the captioned Civil Revision Application by the petitioners.

3. Mr Mrugen K. Purohit, learned advocate for the petitioners, while arguing al