Petitioner challenged an order condoning delay in filing an appeal. The High Court held that no interference was required as the lower court's discretion was not arbitrary or capricious, dismissing the writ petition summarily.
Writ petition is dismissed summarily.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6090 OF 2006
M/s.Shukla Housing Pvt. Ltd...Petitioner
V/s.
Kripa Shankar R. Shukla & anr...Respondents
Mr.B.A.Walimbe i/b. Miss.P.P.Tendulkar for the
petitioner
CORAM : S.C.DHARMADHIKARI, J.
DATE : 15TH JUNE, 2007
P.C.
1.This Writ Petition challenges an order
passed by the Additional District Judge, Kalyan
condoning the delay in filing of the appeal which
was preferred by the first respondent.
2.The delay according to the learned Judge has
been properly explained in as much as the original
appellant contended that the advocate advising him
did not initially inform him that an appeal would
lie against the order of the trial Court.
Subsequently, he took advise of another advocate
i.e.how the delay has occurred.
3.The contention before me is that the first
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respondent has taken his chances and once the suit
claim was not properly valued and the plaint was
directed to be returned for his fault, he couldnot
have challenged that order. The valuation of the
claim for purposes of court fees and jurisdiction
is malafide and i.e.how the original appellant does
not deserve any sympathatic consideration at the
hands of the Lower Appellate Court.
4.Arguments before me proceeded on merits of
the matter and nothing precluded the petitioner
from pointing out to the Lower Appellate Court that
the application shouldnot be allowed for the
reasons that are permissible in law. The merits
can be pointed out when the appeal is taken up for
hearing. For the present, the discretion exercised
by the Court below cannot be said to be arbitrary
or capricious warranting interference in this
Court's limited jurisdiction under Article 227 of
the Constitution of India. Petition is dismissed
summarily.
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1 issue framed by the court
Whether the writ court can interfere under Article 226 with a judicial order condoning an appeal delay when the discretion exercised was not arbitrary or capricious.
M/s. Shukla Housing Pvt. Ltd.
Kripa Shankar R. Shukla
S.C. Dharmaadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court