1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.298 OF 2005 Laxmichand L. Dedhia & Ors. ...Petitioners vs. Sarojini A Kumbhar & Ors. ...Respondents Ms Ranjana Parikh for the petitioners Mr.Uday Warunjikar for respondent no.5 CORAM :A.S.OKA,J. DATE : APRIL 28, 2010 P.C.: 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent no.5. On 9 th April 2010, this Court directed that the petition will be taken up for final disposal at admission stage. The petitioners who are the original plaintiffs have filed this writ petition under Article 227 of the Constitution of India by which an application for condonation of delay in preferring an appeal before the Appeal Bench of Court of Small Causes has been dismissed. The delay was of 45 days. 2 An affidavit of service has been filed by the petitioners stating that the 4 th respondent who is constituted attorney of respondent nos.1,2,3 and 5 has been duly served with notice of this petition by R.P.A.D. None appears for the said respondents. The submission of the learned counsel for the petitioners is that the delay was only of 45 days and there was more than sufficient cause for condonation of delay. It is submitted that a hyper-technical approach has been adopted by the Appeal Bench of the Court of Small Causes. 2 3 The learned counsel for the respondent no.5 invited my attention to the observations made by the Appeal Bench in the impugned order. He pointed out that this was a case where there was no explanation for delay, and in absence of any explanation, Appellate Court was justified in not condoning the delay. 4 I have carefully considered the submissions. The delay was of about 45 days. The petitioners-plaintiffs are trustees of a public trust which is registered under the Bombay Public Trusts Act,1950. A suit for eviction filed by the petitioners has been dismissed by a Judgment and Decree dated 5 th June 2003. Reliance is placed on circular resolution dated 20 th June 2003 passed by the trustees resolving that the decree passed by the trial Court should be challenged. It is stated that the petitioners applied for certified copy of the Judgment and Decree on 20 th June 2003. The certified copies were ready on 9 th February 2004 and were delivered on 10 th February 2004. After the receipt of the copies, the petitioners approached their Advocate Mr.A.C.Chandan and requested him to draft the memorandum of Appeal. It appears that the said Advocate was not maintaining good health and, therefore, he requested the petitioners to engage some other Advocate. It is stated that the papers of the matter were handed over to another Advocate with instructions to draft Memorandum of Appeal. The Advocate required certain other documents which were in the office of the Advocate Mr.Chandan. It is stated that the documents were procured the Advocate Chandan on 22 nd March 2004. Thereafter, the draft of Memorandum of Appeal was prepared which was required to be approved by the board of trustees. That is how the appeal was presented on 22 nd April 2004 along with an application 3 for condonation of delay. It appears to me that the explanation for delay which finds place in the application was more than sufficient to condone the delay especially when appropriate steps were taken to apply for certified copies and thereafter to engage an Advocate for the purpose of drafting and filing the appeal. As sufficient cause was made out, this was a case where the delay ought to have been condoned subject to payment of costs to the contesting respondent. Hence, Petition must succeed. However, Petitioners will have to pay costs quantified at Rs.7500/- to the 5 th respondent. 5 Hence, I pass the following order : i)Impugned Judgment and Order dated 10 th December 2004 is quashed and set aside and interim notice no. 1872 of 2004 in Appeal Stamp No.1346 of 2004 is made absolute. The delay in preferring the appeal is condoned. The petitioners shall pay costs of Rs. 7500/- to the 5 th respondent within a period of six weeks from today. JUDGE 4