1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO. 632 OF 2010 WITH MISCELLANEOUS CIVIL APPLICATION NO. 633 OF 2010 IN WRIT PETITION NO. 539 OF 2010 Shri James P. Faria & Anr. ... Applicants Versus Shri Gopal Krishna Govind Savoikar (Deceased) & Ors. … Respondents Mr. D. Shirodkar, Advocate for the Applicants. Mr. D. Pangam, Advocate for Respondent No. 1(a). None present for the other respondents. Coram: A.P. LAVANDE, J. Date: 16 th December, 2010. ORAL ORDER: Heard Mr. Shirodkar, for the applicants and Mr. Pangam for respondent No. 1(a). None appears on behalf of the other respondents. 2 2. Miscellaneous Civil Application No. 633/2010 has been filed by applicants for condonation of delay of 473 days in filing the revision application against the order dated 02-03-2009 passed by Civil Judge Junior Division, Sanguem in Execution Application No. 5/2002 by which the applicant no. 1 has been inter-alia directed to be detained in civil imprisonment after 30 days from the date of order. 3. Miscellaneous Civil Application No. 632/2010 has been filed by the applicants, seeking leave to convert Writ Petition No. 539/2010 into revision application pursuant to the objection taken by Mr. Pangam that against impugned order the applicants have remedy of revision and therefore writ petition should not be entertained. 4. Mr. Shirodkar for the applicants submits that application for conversion of writ petition into revision is to be taken up first and the mere fact that same is not within limitation would not come in the way of the Court from granting leave to convert writ petition to revision application. In support of 3 submission, Mr. Shirodkar placed reliance on the judgment in the case of State of M.P. and Another V/S Pradeep Kumar and Another, (2000) 7 Supreme Court Cases 372, (1998) 3 Supreme Court Cases 544, J.K. Cotton Spinning & Weaving Mills Co. Ltd. V/S C.C.E. and un-reported judgment of Allahabad High Court dated 25-01-2010 in the case of Duli Ram V/S Har Prasad and Another. 5. According to Mr. Shirodkar since the appropriate remedy against the impugned order is by way of revision, the applicants should not be deprived of the said remedy on technical grounds. 6. Mr. Pangam learned Counsel for respondent no. 1(a) submitted that although against the impugned order the appropriate remedy available to the applicants would be by way of revision, the applicants would not be entitled to seek conversion of writ petition into revision application since if a writ petition is allowed to be converted into revision the same would be barred by the limitation and therefore this Court ought not to allow condonation of delay in filing proceeding which is not before this Court. 4 Placing reliance on judgment of this Court, in the case of Pandurang s/o Casudeo Govardhan V/S Kadappa s/o Sadashivrao Sherkhane reported in 1985(1) B.C.R. 52, Mr. Pangam submitted that in the said case, the learned Single Judge of this Court permitted conversion of writ petition into revision since the same was filed within limitation prescribed for filing of revision application. 7. I have considered the rival submission and perused the record and the judgments relied upon by both sides. 8. In the case of Pradeep Kumar (supra), the Apex Court has held that there is no rule prescribing the rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning of delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal and the Court can regard in such a case that there was no valid presentation of appeal. In case the application for condonation of delay is filed the same should be taken up along with the already filed memorandum of appeal. 5 In the case of J.K. Cotton Spinning (supra), the Apex Court permitted conversion of appeal wrongly filed under Section 35-L of the Central Excises Act, 1944 into special leave petition under Article 136 of the Constitution of India. In the case of Duli Ram (supra), learned Single Judge of Allahabad High Court set aside order of lower appellate Court refusing to convert revision into appeal on the ground that the lower appellate Court could not have rejected the conversion on the ground that the appeal was barred by limitation. 9. In the case of Pandurang Govardhan (supra) relied upon by Mr. Pangam learned Single Judge of this Court treated writ petition under Article 227 of the Constitution of India as revision under Section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. 10. According to respondents themselves the appropriate remedy against the impugned order is to file revision and not writ petition as filed by the applicants. By impugned order, inter-alia, the applicants have been ordered to be detained in civil 6 imprisonment after completion of 30 days from the date of order. Having regard to the ratio laid down in the judgments in the case of Pradeep Kumar (supra) and Duli Ram (supra) relied upon by the applicants and having regard to the factual background, I am unable to accept the submission of Mr. Pangam that it would not be permissible for this Court to permit applicants to convert writ petition into revision application since at this stage revision would be barred by limitation. If the argument of Mr. Pangam is accepted, the applicants would have to withdraw the writ petition and file a fresh revision application with an application for condonation of delay. In my opinion the objection taken on behalf of respondents is technical. It is pertinent to note that the applicants with bonafide belief approached this Court by filing writ petition and it is only after objection was taken on behalf of the respondents that the proper remedy for the applicants would be to file revision against impugned order, the applicants are seeking conversion of writ petition into revision application. I am therefore inclined to condone delay of 473 days in filing revision application and also order conversion of writ petition into revision application. Such an order would serve the interest of justice. 7 11. Therefore, both the applications are allowed. The applicants are permitted to convert writ petition into revision application and delay of 473 days in filing the revision application is condoned. 12. Before concluding I would like to place on record a word of appreciation to Mr. Shirodkar who has given able assistance in disposing of the applications. 13. The applications stand disposed of. A.P. LAVANDE, J. Ev