1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO. 12099 OF 2008 IN APPEAL FROM ORDER ST. NO. 21730 OF 2008 Dr. Asmat Fatema Muktar & ors. ...Petitioners VERSUS Dr. Sayyed Siddhiqui s/o Mohemad Mainoddin Siddhiqui and anr. ...Respondents ..... Shri V.G.Sakolkar, advocate for the applicants Shri P.M.Venjane, advocate for respondent nos. 1 and 2. ..... CORAM : S.P. DAVARE, J. DATED : 24 th June, 2009. ORAL ORDER : 1. Persued. 2. The applicants/appellants (original plaintiffs) have filed the present Civil Application for condonation of delay of 317 days 2 in filing the accompanying Appeal from Order. 3. It is the contention of the applicant/appellants that they had filed Writ Petition No. 1211 of 2007 on 31.12.2007 challenging the order passed by the learned Joint Civil Judge, Senior Division, Latur below Exh.5 in Special Civil Suit No. 40 of 2007 on 11.9.2007. The said Writ Petition came up for hearing on admission on 17.10.2008. However, at the time of arguments it was revealed that there was efficacious alternate remedy of Appeal from Order under Order 43 Rule 1 of Code of Civil Procedure available to the petitioners. Hence, this court granted liberty to withdraw the said Writ Petition on the said date i.e. 17.10.2008. (order is annexed at Exh.’A-1’) to enable the applicants to file Appeal from Order. The applicants submit that while challenging the order dated 11.9.2007 they had filed Writ Petition No. 1211 of 2007 on 3.12.2007 i.e. within the period of 90 days limitation and the said Writ Petition was pending till 17.10.2008. However, thereafter the order of granting liberty to withdraw the said Writ Petition was passed on 17.10.2008 as afore said and, thereafter the applicants have filed the accompanying Appeal from Order immediately within the period of limitation. Hence, in fact there is no delay caused excluding the days of pending Writ Petition before this court. 3 4. However, apart from the said position, even if the said period of pendency of Writ Petition is not considered, the delay in filing the accompanying Appeal from Order could be construed as 317 days delay, which is not deliberate and willful and hence requested to condone the said delay in the interest of justice. 5. The learned counsel for the respondents vehemently opposed the present application contending that present application bears no substance and same is devoid of any merits and, therefore, the same be rejected. 6. Considering the rival submissions, admittedly the applicants/appellants had filed Writ Petition No. 1211 of 2007 on 31.12.2007 challenging the order dated 11.9.2007 passed by the learned Joint Civil Judge, Senior Division, Latur below Exh.5 in Special Civil Suit No. 40 of 2007 and the said Writ Petition was allowed to be withdrawn vide order passed by this court on 17.10.2008 (copy thereof is annexed at Exh.’A-1’), since the applicants/appellants revealed that the alternate efficacious remedy was available under Order 43 Rule 1 of Code of Civil Procedure i.e. filing of Appeal from Order and accordingly the said Appeal from Order came to be filed on 23.10.2008 i.e. after 4 withdrawal of said Writ Petition on 17.10.2008. 7. Hence, it is apparent that delay caused in filing the accompanying Appeal from Order is not willful and deliberate and interest of justice requires that same be condoned to enable the applicants/appellants to prosecute the accompanying Appeal from Order on merits. 8. In the result, the present Civil Application is allowed in terms of prayer clause ‘B’ thereof and delay of 317 days in filing the accompanying Appeal from Order stands condoned and accompanying Appeal from Order be registered and numbered. Civil Application stands disposed of accordingly. (S.P. DAVARE, J.) dbm/ca12099.08