$-15 * IN THE HIGH COURT OF DELHI AT NEW DELHI + C.R.P. 74/2010 and CM No. 7353/2010 BHAGWAN DASS NAGAR RESIDENTS WELFARE ASSOCIATION Petitioner Through Mr. H.G.R. Khattar, Advocate. versus CAPITAL LAND BUILDERS PVT LTD & ANR Respondents Through Mr. M.R. Chawla and Ms. Nidhi Parashar, Advocates. Ms. Mansi Gupta, Advocate for MCD. CORAM; HON'BLE MS. JUSTICE INDERMEET KAUR ORDER % 19.12.2011 The order Impugned before this court is the order dated 22.03.2010 vide which the application filed by the appellant under Section 5 read with Section 14 of the Limitation Act alongwith his appeal seeking condonation of delay in preferring the appeal had been allowed. This is the subject matter of the present petition. Record shows that a suit for injunction had been filed by the plaintiff; on an application filed by the defendant under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the plaint had been rejected vide order dated 19.04.2005. A CM main petition was preferred against this order of the rejection of the plaint; this was on 04.09.2005. The matter remained pending as a CM main petition between 04.09.2005 to 20.02.2007 wherein a Bench of this \ . Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified court had noted that since the rejection of a plaint amounts to a decree within the meaning of Section 2 Sub-Section 2 of the Code, the said order is appealable and leave was granted to the plaintiff to prefer an appeal alongwith an application under Section 14 of the Limitation Act with a direction to the First Appellate Court to consider sufficiency of the reasons for condoning the delay in preferring the appeal in terms of the fact that the CM Main petition had remained pending In this intervening period. The order of the High Court dated 20.02.2007 had permitted the plaintiff to withdraw this CM main petition; within 16 days of the withdrawal of this CM main petition from the High Court an appeal have been filed accompanied with an application under Section 5 read with Section 14 of the Limitation Act. The averments made in the present application have been perused. The main consideration which had weighed in the mind of the Trial Court was the order of the High Court dated 20.02.2007 granting permission to the plaintiff to withdraw his CM main with liberty to file an appeal alongwith an application under Section 14 of the Limitation Act which had to be considered in the aforenoted factual contest. Discretion was exercised fairly in the impugned order; the delay was condoned as there was a bona fide mistake in filing a CM main petition against the order dated 19.04.2005. • The main grievance of the learned counsel for the petitioner is that the Trial Court has not considered the delay which had accrued between 19.04.2005 (date of the impugned order) to 04.09.2005 when the petition under Article 227 of the Constitution of India had been filed in the High Court; contention being that there was an unexplainable delay of about 4-1/2 months in preferring this Ci^l main petition. On this count, the Trial Court has noted that the explanation furnished by the plaintiff in this regard that he was under a bona fide belief that there is no period of limitation prescribed for preferring an appeal under Article 227 of the Constitution of India and this explanation having accepted by the first appellate Court as also the further fact that within 16 days of the withdrawal of the CM main petition an appeal had been filed which again reflects the bona fides of the plaintiff, the impugned order condoning the delay in terms of Section 5 read with Section 14 of the Limitation Act on no counts suffers from any infirmity. In no manner it can be said that discretion exercised by the Court below was an arbitrary exercise or malafide. It appears to be fair and just. Impugned order calls for no interference; petitiori is dismissed. DECEMBER 19, 2011 rb INDERMEET KAUR, J J ^