Allowed

Balam Gafur Patel and Anr. v. Bapu Balu Vayadande and Ors.

Bombay HC13 Apr 2010WP/4737/2009

Case brief

AI extract

What is this about?

Single judge of the High Court of Bombay, Civil Appellate Jurisdiction, allowed a writ petition to quash the District Court's order rejecting an application for condonation of delay in filing an appeal. The court held that sickness and late receipt of certified copies constituted sufficient cause.

What did the court decide?

Impugned order rejected by District Court quashed; application for condonation of delay in appeal allowed against surviving respondents only; writ petition allowed.

Balam Gafur Patel and Anr. Vs Bapu Balu… — Civil Procedure and Limitation | Bombay HC (2010)

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ssp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
 WRIT PETITION NO.4737 OF 2009

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Balam Gafur Patel & Ors.

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...Petitioners

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vs.

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Bapu Balu Vayadande & Ors.

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...Respondents

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Mr.A.M.Mulla for the petitioners
None for the respondents

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 CORAM :A.S.OKA,J.
 DATE : APRIL 13, 2010

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P.C.:

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1 On 21st July 2009, notice for final disposal was
issued by this Court. The 2nd and 4th respondents are
already dead. Office noting shows that the notice has
been duly served to the respondent nos.1,3,6,9 and 10.
Petition already stands dismissed as against the
respondent nos.5,7,8, 11 to 13.

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2The petitioners are the original plaintiffs. The
suit filed by the petitioners was dismissed on 29th
October 2005. An appeal along with an application for
condonation of delay was presented by the petitioners
before the District Court on 3rd January 2006. By the
impugned order, the application for condonation of delay
has been rejected. The learned District Judge observed
that the delay was of 53 days and there was no
explanation for the said delay. The learned Judge
observed that there is a correction carried out in the
date mentioned on the medical certificate produced by the
petitioners.

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3After having heard the learned counsel for the
petitioner and after perusing the averments made in the
application, I find that a sufficient cause for
condonation of delay was made out. As stated earlier,
impugned Judgment and decree was passed on 29th October
2005. The application for obtaining certified copy of
the Judgment and Decree was filed on 25th November 2005.
The copies were received by the petitioners on 5th
December 2005. An appeal along with application for
condonation of delay was presented on 3rd January 2006.
In the application, it is stated that due to sickness,
appeal could not be preferred earlier. Considering the
averments made in the application and considering the
extent of delay, the District Court ought to have adopted
a liberal and justice oriented approach and condoned the
delay. Therefore, impugned order will have to be quashed
and set aside.

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4 Hence, I pass the following order :

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i) Impugned order is quashed and set aside and the Civil Miscellaneous Application bearing no.2 of 2006 is hereby allowed.

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ii)It is made clear that as the present petition stands dismissed as against the respondent nos.5,7,8 and 11 to 13 and as the respondent nos.2 and 4 are already dead, the application for condonation of delay survives only as against the respondent nos. 1,3,6,9 and 10 and the delay stands condoned only as far as said respondents are concerned.

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iii)Writ Petition is allowed in above terms.

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 JUDGE

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Balam Gafur Patel and Anr. v. Bapu Balu Vayadande and Ors.

Case brief

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Balam Gafur Patel and Anr. v. Bapu Balu Vayadande and Ors.

Case brief

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