- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.31 OF 2008 IN APPEAL LODGING NO.891 OF 2007 IN WRIT PETITION NO.3087 OF 2002 Municipal Corporation of Greater Mumbai & Ors. .. Appellants Vs. Francis Pascal Lobo. .. Respondent -- Shri A.Y.Sakhare, Senior Counsel, i/b S.H.Ujjainwala & Co. for the Appellants. Shri Aditya Chitale for the Respondent. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 2ND JULY, 2008 P.C. 1. Heard learned counsel for the applicants/appellants. The affidavits filed by Shri Ramchandra R.Rane, working as Superintendent in the office of the Mumbai Municipal Corporation, are taken on record. Noted the contents thereof. The deponent is also present in person. 2. As regards the notice of motion is concerned, - 2 - the same is for condonation of delay of about 1 year and 7 months in filing the appeal against the order passed by the learned Single Judge on 2nd May, 2006 in Writ Petition No.3087 of 2002. The appeal was filed on 8th January, 2008. 3. It is the case of the appellants that after pronouncement of the order by the learned Single Judge, they had filed an application for certified copy of the said order through a Clerk of their Legal Department. However, they have not been able to get copy of the said order till the date of filing of an appeal. Relevant averments in that regard in the affidavit in support of notice of motion read thus:- "3. I say that on the basis of the register maintained by this department I have filed an affidavit that application was made for certified copy of the judgment on 4.5.2006. I say that the said board clerk Shri N.H.Gawali who was incharge has retired on 31.5.2008. I say that I have made the same statement with a bonafide belief as after verifying the entry in the register by relying upon - 3 - the said entry and I say that I have no malafide intention in making the said statement. I crave leave to refer to and rely upon the said register maintained by this department as and when produced. 4. I say that the receipt of the application made for the certified copy of the judgment dated 2.5.2006 is also not traceable in the office. I say that the receipt issued by the Court office bears a Corner number from which verification can be made as to whether the certified copy is ready or not. I say that as the said receipt is also not traceable it is very difficult to find out from the Court record whether the application was made and if made when and whether the order copy is ready." 4. In view of the allegation that inspite of the application being made for obtaining certified copy of the said order, office of the High Court had not furnished the same to the appellants for more than 1 - 4 - and 1/2 years, and as the averment in that regard was vague, under the order dated 25th June, 2008 the appellants were permitted to ascertain from their record as to whether really such an application was filed by them for certified copy of the said order. Pursuant thereto, the Superintendent of the Corporation working in its Legal Department and incharge of High Court matters has filed the affidavit stating that the averment as regards filing of the application for certified copy in his earlier affidavit was made based on the entry in the register maintained by the Managing Clerk of the Corporation in that regard, and apart from the said entry the Corporation has no other proof about the actual filing of such application for certified copy of the said order dated 2nd May, 2006. 5. The concerned officer of the Corporation has also filed an affidavit stating that there was mistake on his part to the extent of the averment that the Board Clerk of Legal Department of the Corporation had been trying to obtain certified copy of the said order by contacting the High Court office. The said statement was made on assumption that pursuant to the entry made by the said Clerk, he must have been trying to get certified copy from the office of the High - 5 - Court. He has, however, tendered apology in the affidavit for making such statement and has stated that no document is traceable with the Corporation to prove that actually any such application for certified copy of the said order was ever filed in this Court, apart from the entry made by the Board Clerk in his register. 6. To the specific query as to whether any amount has been spent or paid by the Corporation for certified copy of the order dated 2nd May, 2006 passed in Writ Petition No.3087 of 2002, the learned senior counsel, on instructions, submitted that the Corporation does not have any documentary proof in that regard. According to him, normal practice is that certain fixed amount is sanctioned to the legal department for obtaining certified copies of various orders passed in various matters, and there is no account individually of the matter in hand as to whether any amount was spent in trying to obtain certified copy of the said order. 7. The concerned officer has also filed an affidavit expressing his apology as well as willingness to pay a sum of Rs.2,500/- as costs in the matter with the assurance that he would not claim - 6 - reimbursement in relation to the said amount from the Corporation. 8. As regards the delay in filing appeal, though it was submitted in view of the statement on behalf of the officer that there is no delay as such, the learned senior counsel has fairly submitted that in view of the subsequent affidavit filed by the officer, it cannot be said that there is no delay in the matter. 9. Perusal of the affidavits, therefore, merely disclose that there was entry made by the clerk to the effect that the certified copy was applied for in relation to the impugned order. However, there is no documentary proof about actual filing of such application for certified copy of the said order. Being so, it cannot be said that the department had been vigilant in getting certified copy of the order and, therefore, there is no cause as such shown for condonation of delay in filing appeal against the impugned order. On this count itself, therefore, the notice of motion is liable to be dismissed. 10. Apart from dismissing the notice of motion in view of what has been recorded hereinabove, it would - 7 - also be necessary to direct the concerned officer Shri Ramchandra R.Rane to deposit an amount of Rs.2,500/- as costs with the Registry with a rider that he would not be entitled to claim reimbursement of the said amount from the Corporation, while accepting the apology tendered by him. As in the facts and circumstances of the case and in view of willingness expressed to pay costs of Rs.2,500/- by the concerned officer himself, we find it fit case to accept such apology. 11. In the result, therefore, the notice of motion is dismissed. Costs of Rs.2,500/- shall be deposited by the concerned officer Shri Ramchandra R.Rane, within a period of one week with the Registry and thereafter the same shall be credited by the Registry to the account of Maharashtra State Legal Services Authority. 12. In view of dismissal of the notice of motion for condonation of delay, the Appeal Lodging No.891 of 2007 also stands dismissed. ( R.M.S.KHANDEPARKAR, J ) - 8 - ( P.B.MAJMUDAR, J )