1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO.1397 OF 2006 IN APPEAL FROM ORDER STAMP NO.388 OF 2006 Smt. Harjinder Kaur w/o Avtarsingh and others ... APPLICANTS VERSUS The Marathwada Wakf Board and others ... RESPONDENTS ..... Shri S.V. Gangapurwala, Advocate for the applicants Mrs. A.N. Ansari, Advocate for respondent No.1. ..... Coram : Shrihari P. Davare, J. Dated : 9th July, 2009. ORAL ORDER : 1. Perused. Heard learned respective counsel for the parties. 2. The applicants (original defendants) have preferred the present Civil Application, requesting to condone the delay of about 317 days in filing the accompanying appeal against order. 3. The applicants submit that, the applicants have filed the 2 accompanying appeal from order challenging the judgment and order passed in Regular Civil Appeal No.209/2001 by Extra Joint District Judge, Aurangabad on 2.9.2004. 4. The applicants further submit that, initially the applicants had filed Writ Petition No.3775/2005 assailing the aforesaid judgment and order passed in Regular Civil Appeal No.209/2001 by Extra Joint District Judge, Aurangabad on 2.9.2004. The said Writ petition came up for hearing on 6.6.2005 for admission, but it was observed that the said Writ Petition is not maintainable and applicants herein may require to prefer appeal from order against the impugned judgment and order. 5. The applicants further submit that, thereafter the applicants, after taking the legal advice, filed the accompanying appeal from order on 12.1.2006. However, there was delay of about 317 days in filing the accompanying appeal from order. Hence, the applicants have preferred the present civil application for condonation of delay. 6. The applicants further submit that, the delay occurred in filing the accompanying appeal from order is not intentional, willful or deliberate, but it was due to bonafide mistake and belief by the Advocate. The applicants also submit that if the delay is not condoned, they would suffer irreparable loss and they would be deprived of the opportunity of prosecuting the accompanying appeal from order on merits. 3 7. Mrs. A.N. Ansari, learned counsel appearing for respondent No. 1 opposed the present Civil Application vehemently and submitted that the present application bears no substance and same is devoid of any merits and, therefore, same be rejected. 8. Considering the rival submissions, it is apparent that the applicants herein initially had filed Writ Petition No.3775/2005 before this Court assailing the judgment and order passed in Regular Civil Appeal No. 204/2001 on 2.9.2004, passed by learned Extra Joint District Judge, Aurangabad bonafidely. However, when the said Writ Petition came up for admission on 6.6.2005, it was revealed that the said Writ Petition was not maintainable and applicants were required to file Appeal from Order against the impugned judgment and order. After taking the legal advice, the applicants filed the present Appeal from Order on 12.1.2006, which resulted into delay of about 317 days. Apparently, the delay has been caused because of bonafide mistake and belief of the Advocate and applicant should not be suffered therefor. The substantive rights of the applicants are involved in the accompanying Appeal from Order and applicants should not be deprived to prosecute the accompanying Appeal from Order on merits. It appears that, the delay occurred in filing the accompanying Appeal from Order is not willful, intentional or deliberate and hence, same is required to be condoned in the interest of justice. 9. In the result, Civil Application is allowed, in terms of its prayer clause and delay of 317 days caused in filing accompanying Appeal from 4 Order stands condoned and the accompanying Appeal from Order be registered and numbered accordingly and Appeal from Order be fixed for admission on 17.7.2009 (Shrihari P. Davare, J.) fmp/ca1397.06