1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CAF NO.783 OF 2009 IN F.A.ST.NO.1214 OF 2009. Joshi and Sons, thr.its Proprietor Shri V.K.Joshi,Nagpur. ...vs.. National Tiles and Marble Company, Mumbai ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Mr.V.V.Bhangde, Advocate for the applicant. Mr.B.N.Mohta, Advocate for the respondent. Coram : C. L. PANGARKAR, J. Dated : 27rd JULY, 2009. 1. This application has been filed for condonation of delay in presenting the appeal before this court. 2. The appellant is a original plaintiff. He instituted Civil Suit No.227 of 1982 in the court of the Civil Judge (Sr.Dn.), Nagpur for recovery of Rs.2,14,500/-. The said suit was contested by respondent/defendant and the suit came to be dismissed. 2 3. After the suit was dismissed the plaintiff filed an appeal before the District Judge. While filing the appeal, the plaintiff reduced the valuation of the appeal by giving up the claim of Rs.14,500/-. It is not in dispute that a District Judge has a right to entertain an appeal the valuation of which is up to Rs.2,00,000/-. The plaintiff, therefore, filed his appeal before the District Judge. 4. An objection was raised by the present respondent that the appeal should have been filed before the High Court even though the appellant has reduced his claim in appeal that what was in original suit. The said application was heard by Ad hoc District Judge, Nagpur and he found that the appeal was wrongly instituted in the District court and therefore, directed the appeal to be returned to the appellant for being presented before the High Court. The said oder was passed by the District Judge on 15/1/2009 and this appeal came to be presented before this court on 19/1/2009. The appellant contends that the time consumed in prosecuting the appeal before the District Judge be, therefore, condoned and this appeal be registered in this court. 3 5. The learned counsel for the respondent submits before me that the action of the appellant in presenting the appeal before the District Judge itself was not bonafide. He submits that the appellant was very much aware of the fact that appeal is required to be valued at the same valuation at which the suit is valued and he having deliberately reduced the valuation, the action was not bonafide. He submits that in such cases the time consumed in prosecuting the appeal before the District Judge cannot be condoned or excluded. 6. He relied on the decision reported in [2006(2)] Mh.L.J. 870 (Foreshore Co-operative Housing Society Ltd. ..vs.. Praveen Desai and ors.). This court has held that the plaintiff has to establish that the proceedings were instituted in good faith and prosecuted in good faith. The question, therefore, is whether institution of appeal before the District Judge was in good faith and whether it was being prosecuted in good faith. It has to be borne in mind that the present appeal is filed by the plaintiff whose suit was dismissed. No plaintiff would like to get his appeal dismissed unnecessarily. If after reduction of the valuation 4 the plaintiff feels that the valuation of the appeal would be Rs.2,00,000/-, it can always be said that his intention was bonafide in saying that the appeal should be entertained by the District Judge and in no case it could be said that the said institution of appeal before the District Judge was with a malafide intention. The prosecution of such an appeal before the District Judge after reduction of the valuation to my mind can always be said to be bonafide. Ultimately the court has held that the appeal has to be valued in accordance with the valuation made in the suit itself. It is on account of this reason the court has directed the appeal to be returned to the appellant/plaintiff. Such prosecution of the appeal on that ground before the District Judge, to my mind, can always be said to be bonafide. The plaintiff has presented the appeal within four days after it was returned to the plaintiff. The appeal having been presented immediately after it was returned, the delay definitely needs to be condoned. 7. Respondent’s counsel has also relied on decision reported in AIR 2002 SC 2768 (Deena (dead) through L.Rs. ..vs.. Bharat Singh (dead) thr. L.Rs. And ors.). In the said case, the Supreme Court has held that non- 5 impleadment of a necessary party, in the suit was a clear case of laches on the part of the plaintiffs and in no case it could be said that the plaintiff has prosecuted the suit bonafidely and in good faith. In the instant case, the impression of the plaintiff that if the valuation is reduced, the District Court would be able to entertain the appeal, the prosecution of the appeal cannot be said to be malafide. In the circumstances, the delay is condoned but subject to payment of costs of Rs.2000/- (Rupees two thousand only) to be paid within period of four weeks to the respondent. JUDGE. chute