1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1577 OF 2009 IN APPEAL (L) NO.265 OF 2009 IN NOTICE OF MOTION NO.2233 OF 2008 IN SUIT NO.1870 OF 2008 Variegate Realestate Private Limited .... Appellants V/s. Daulat Sheriar Ahrestani @ Dolly Sheriar Irani and Ors. ..... Respondents Mr.Aspi Chenoy, Sr.Advocate with Mr.S.V.Doijode, Mr.K.G.Mhatre i/by Doijode Associates, for the appellant. Mr.Shailesh Shah a/w Mr.Y.R.Shah, for respondent Nos.1 & 2. Mr.M.R.Irani, respondent No.3 present in person. CORAM :P.B.MAJMUDAR & R.C.CHAVAN, JJ. DATE : NOVEMBER 03, 2009 P.C. 1. By way of this notice of motion, the appellants have prayed that delay of about 90 days in filing the appeal may be condoned. The appellants are the original plaintiffs of suit No.1870 of 2008. In the aforesaid suit, notice of motion was taken out by the plaintiffs restraining respondent No.1 from creating any third party interest in the suit property and from inducting anybody in the premises. The learned Single Judge 2 granted ad-interim injunction restraining respondent No.1 from creating third party interest in respect of the suit property. However, injunction was refused so far as respondent Nos.2 and 3 are concerned, as it was found that they were already in possession and occupation of the suit premises. 2. Mr.Aspi Chenoy, Sr.Advocate, appearing for the appellants submitted that since the appellants were not certain as to what steps should be taken i.e. whether appeal is to be filed and whether substantive proceedings to be taken and after taking expert opinion, this appeal has been filed and that is how the delay has occurred. On the other hand, the respondent No.3 submitted that if the delay is to be considered from the date of receipt of the authenticated copy of the order, then it comes to 120 days and not 90 days, as has been mentioned in the notice of motion. However, the Registry has calculated the delay as 90 days. In our view, instead of throwing away the appeal at this stage by not condoning the delay, it would be just and proper to condone the delay, as the appellant has consumed some time in seeking legal advise as to what steps should be taken in connection with the subject matter. We accordingly condone the delay in filing the appeal on the condition that the appellants shall pay Rs. 15,000/- to the respondents towards the costs of this notice of motion. Such cost shall be paid within a period of one week from today. It is 3 clarified that it should not mean that we have found any substance on the merits so far as appeal is concerned and we have not examined any point on merits. The notice of motion is allowed subject to payment of costs of Rs.15,000/- by the appellants to the respondents. The Registry shall circulate the appeal for admission on 10-11-2009. ( R.C.CHAVAN, J. ) ( P.B.MAJMUDAR, J.)