Divided Bench dismissed a writ petition challenging the refusal of the Intermediate Appellate Court to condone a delay of three years and ten days in filing a regular civil appeal, upholding the lower court's discretion due to lack of substantiation in the petition.
None. Petition dismissed. Civil Application No.2976 of 2006 disposed off.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2445 OF 2005
Chindhu Shanka Thakar
..Petitioners
Versus
Nathu Bhagu Thakar and Ors.....Respondents
R.B.Deshmukh h/f. Vilas B.Tapkir for the petitioners.
Piyush Shah for respondent nos.1 to 6.
CORAM: S.C.DHARMADHIKARI, J.
10th December, 2007.
P.C. :
1. Heard Mr.Tapkir appearing for the petitioners,
and perused the impugned order refusing to condone the
delay of three years and ten days in filing of Regular
Civil Appeal.
2. The lower appellate court has observed that the
application is vague. The plea therein that the
Advocate has misled the petitioner has not been
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substantiated, inasmuch as, the particulars including
the name of the Advocate have not been set out.
Further, it is brought on record that the present
petitioner had attended the Trial Court proceedings.
It is not as if he was totally unaware of a Suit being
filed against him . In such circumstances, refusal of
the lower appellate court to exercise discretion in
favour of a litigant who has approached it belatedly
and has not set out any reason or cause for not
preferring the appeal within time cannot said to be
arbitrary or capricious exercise of discretionary
power. In such circumstances, there is no reason to
interfere. Petition is dismissed. No order as to
costs.
2. In the light of the dismissal of the petition,
Civil Application No.2976 of 2006 does not survive and
is accordingly disposed off.
sd/-
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2 issues framed by the court
Whether the lower appellate court was justified in refusing to condone the delay in filing the regular civil appeal on the ground that the petition was vague and unsubstantiated.
Whether the dismissal of the writ petition seeking condonation of delay for filing a regular civil appeal is correct.
Chindhu Shanka Thakar
Nathu Bhagu Thakar
S.C. DHARMADHIKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court