Allowed

Smt.Mangala Madhav Kharadkar and Another v. Rajendrakumar Bansilal Raisoni

Bombay HC24 Aug 2007CAA/668/2007

Case brief

AI extract

What is this about?

In an application for condonation of 195 days delay in filing an appeal, the court rejected the respondent's contention that the applicants' plea regarding illness was false due to conflicting jury actions. Applying a liberal approach, the court allowed the condonation of delay subject to costs.

What did the court decide?

Application for condonation of delay allowed subject to payment of costs of Rs. 5,000 within six weeks.

Smt.Mangala Madhav Kharadkar and Another Vs… — Civil Procedure and Limitation | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.668 OF 2007
IN
APPEAL FROM ORDER NO.507 OF 2007

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 Smt.Mangala Madhav Kharadkar & Anr....Applicants

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vs.

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Rajandrakumar Bansilal Raisoni
 through his P.A.holder

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...Respondent

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Mr.A.K.Abhyankar with Mr.S.G.Karandikar for the Applicants.
 Mr.M.J.Jamdar i/b Mr.Amogh Paralikar for the Respondent

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CORAM: A.S.OKA,J.
DATE : AUGUST 24, 2007.

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P.C.:

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 1. This is an application for condonation of delay of 195
 days in preferring the Appeal from Order. The condonation of
 delay is sought on the ground that the Appeal could not be
 preferred in time as the first applicant was suffering from
 hypertension and the second applicant was ill and was admitted
 in Grant Medical Foundation Ruby Hall Clinic and was operated
 upon. It is stated that the second applicant was taking bed
 rest as per the Doctor’s advice.

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 2. The application is opposed by the learned counsel for the
 Respondents on the ground that the reasons given in the
 application are false. He pointed out that in another suit,
 the applicants filed an application on 20th January 2007
 seeking permission to file written statement by condoning the

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delay. He pointed out that the ground of illness was not
 incorporated in the said application. He also pointed out
 that on 5th March 2007, a reply was filed by the applicants to
 the application under Order XXXIX Rule 2A of the Code of Civil
 Procedure,1908. He pointed out the stand taken by the
 applicants in the suit filed by a third party viz. Esteem
 Construction Pvt.Ltd. He invited my attention to the
 paragraph 4 of the written statement of the applicants which

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"4...However admittedly the said injunction order passed against these defendants in Spl.Civil Suit No.707/2006 is neither vacated within 180 days nor going to be vacated after the stipulated period of 180 days as the plaintiff or these defendants have not challenged the same. Hence, the question of vacating the said order in near future does not at all..."

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 He, therefore, submitted that in the aforesaid averments in
 the written statement of the Applicant filed on 17th January
 2007 show that they were not intending to challenge the order
 which was impugned in the Appeal from Order. He pointed out
 that the Appeal from Order was filed on 16th June 2007.

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 3. I have considered the submissions. Perusal of the

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application dated 20th January 2007 filed by the applicants in
 the trial court shows that the reason for delay mentioned in

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 the present application is not set out in the said
 application. The reason set out in the said application is
 that the written statement could not be field within 90 days
 as there was difference of opinion between the defendants
 (applicants herein) and their Advocate. What has been pointed
 out in the said application is the reason for not filing the
 written statement within 90 days. Merely because the reason
 pointed out in the said application is not the one which is
 pleaded in the present application, inference cannot be drawn
 that what has been pleaded in the present application is
 false. In so far as the filing of reply to the application
 dated 5th march 2007 is concerned, reply is filed in the Court
 of Pune. Secondly, the said reply was required to be filed to
 the application wherein allegation against the applicants is
 of committing breach of order of injunction. Therefore,
 merely because the said reply was filed in Pune Court in March
 2007, one cannot jump to the conclusion that the reasons set
 out in the present application are false.

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 4. Now, coming to the averments made in the written statement
 in the suit filed by the Esteem Construction Pvt.Ltd.,

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it is obvious that what has been set out in

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 paragraph 4 of the written statement is in the context of the
controversy involved in that suit and no inference can be

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drawn that the applicants had not decided to challenge the

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 order impugned in the Appeal from Order.

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 5. This application for condonation of delay may not be
 elaborately and exhaustively drafted. However, the delay is
 of 195 days. The learned counsel for the respondents relied
 upon the decision of Delhi High Court in case of Union of
 India Vs.K.K.Taneja (A.I.R. S.C. 1992 page 192) and
 submitted that as the explanation for delay is false,
 application deserves to be rejected. As set out earlier, no
 conclusion can be drawn that the explanation is false. While
 dealing with the application for condonation of delay, a
 liberal approach is contemplated. Hence, the delay deserves
 to be condoned. Prejudice which may be caused to the

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 respondent can always be compensated by ordering the payment
 of costs. Hence, the application deserves to be allowed
 subject to payment of costs of Rs.5,000/-.

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 6. Hence, the application is allowed in terms of prayer
 clause (a) subject to the condition of the applicants paying
 costs of Rs.5,000/- to the Respondent within a period of six
 weeks from today. The payment of costs will be a condition

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JUDGE

Smt.Mangala Madhav Kharadkar and Another v. Rajendrakumar Bansilal Raisoni

Case brief

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What did the court decide?

Smt.Mangala Madhav Kharadkar and Another v. Rajendrakumar Bansilal Raisoni

Case brief

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What did the court decide?

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