1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1273 OF 2008 Shri Moru R. Gavhane & Ors. ..Petitioners. V/s. Sou.Kasturibai D. Rokde & Ors. ..Respondents. Mr. S.M.Gorwadkar for Petitioners. Mr.Hemant Ghadigankar for respondent No.1. Mr.Rakesh Patil i/b. Deepak R.More for respondent No.2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 22, 2008. DATE : AUGUST 22, 2008. DATE : AUGUST 22, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Having regard to the fact situation of the present case, no fault can be found with the ultimate conclusion reached by the Court below in rejecting the Application for condonation of delay. The facts which emerge from the pleadings and record are that decree was passed on 26th March, 2002. The Petitioners filed Appeal against that decree on 10th June, 2002. In the said Appeal, the Court directed the Petitioners to pay costs for preparation of the Appeal Paper Book on 8/6/2004. It is common ground that the Petitioners appeared before the Court on 8th 2 June, 2004 and was aware about the next date of hearing. As a matter of fact, the Petitioners complied with the direction of payment of costs within time. However, neither the Petitioners nor their advocate bothered to appear before the Court thereafter. As a result of which eventually the Appeal came to be dismissed for non-prosecution on 19/9/2005. The Petitioners filed application for condonation of delay and setting aside the Order dated 19/9/2005. In the Application it is asserted that the Petitioners became aware of the Order dated 19/9/2005 only when the decree was sought to be executed. However, the date on which that information was acquired has not been disclosed by the Applicants in the application filed before the lower Court. 3. Be that as it may, for the first time in the Writ Petition, the Petitioners have disclosed that they approached their advocate on 10th January, 2007 when they were informed about the Order passed on 19/9/2005. Whereafter the Petitioners were advised to file application, which has been rejected by the Court below. As aforesaid, having regard to the fact situation of the present case, the approach of the Court below in rejecting the application was just and appropriate. On this reasoning, the Petition should 3 fail. 4. However, the Petitioners contend that the mistake is essentially on account of advise given by the Advocate. The argument clearly overlooks the finding of fact recorded by the Court below that the said assertion has not been substantiated. If that contention is to be discarded, then it necessarily follows that it is a case of negligence and casual approach of the Petitioners, as a result of which the present situation has arisen. The application which was filed by the Petitioners has been rejected by the impugned Judgment, as back as on 9th August, 2007. However, the present Writ Petition has been filed only on 1st February, 2008. In the Writ Petition, no explanation has been offered as to what prevented the Petitioners to file the present Petition immediately after the impugned order was passed. That deficiency has now been explained in the affidavit filed by the Advocate on record dated 20th August, 2008. Even if the explanation given in the affidavit is to be accepted as it is, I have no hesitation in taking the view that the negligence or inaction of the Petitioners is not innocent one. The Petitioners have succeeded in ensuring that the decree passed as back as on 26th March, 2002 could not be taken to its logical end. In other words, the Respondents/decree 4 holders have been deprived of the fruits of the decree for almost six years and for no fault on their part. Even if the Petitioners’ stand is to be accepted by way of indulgence and grace to be shown to the Petitioners, that can be done only if the Petitioners were to compensate the Respondents commensurately for such inaction and negligent attitude, which has resulted in depriving the Respondents from enjoying the fruits of the decree passed as back as on 26th March, 2002. That indulgence can be shown only if the Petitioners were to compensate the Respondents atleast to the extent of Rs.50,000/-, to be paid within six weeks from today. 5. Counsel for the Petitioners submits that compensation of Rs.50,000/- is excessive. In my opinion, however, the amount is very conservative figure to compensate the Respondents for the deprivation of their right accrued to them, which has been rightly recognised by the lower Court in the impugned Judgment. 6. Counsel for the Respondents submits that the Respondents are not keen to receive the amount but would insist that the Petition be dismissed, as right has accrued in their favour. However, as aforesaid, 5 it is only grace shown to the Petitioners by way of this indulgence on condition referred to earlier. The Petitioners shall pay cost of Rs.50,000/- to the Respondents within six weeks from today, failing which the indulgence which has been shown in this Order shall stand recalled forthwith without further reference to the Court. It is also made clear that no request for extension of time on any count will be entertained at the instance of the Petitioner. 7. After the amount is paid to the Respondents, the Appeal being Appeal No.475 of 2002 shall stand restored to the file of the Appellate Court which will have to be then decided not later than end of January, 2009. 8. The parties undertake through Counsel that they shall extend full cooperation to the trial Court for early decision of the Appeal, in case the Appeal stands restored. 9. Subject to the above, the parties shall appear before the trial Court on 6th October, 2008, on which date the trial Court may proceed to hear the appeal or fix such other convenient date while ensuring that the Appeal is finally disposed of not later than end of January, 2009. 6 10. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)