1 wp8524.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8524 of 2009 Mr. Baban Govind Sutar ... Petitioner v/s. Mr. Mukund Shankar Kalekar & ors. ... Respondents Mr. Satyajeet Mirajkar-advocate for the petitioner. Mr. P.D. Pise, advocate for respondent no. 1. Mr. Rajesh Parab-advocate for respondents 2(a) & (3). CORAM:- B.R. GAVAI, J. DATED :- MARCH 11, 2011. P.C. Rule. Rule made returnable forthwith. 2. By consent of the parties, petition is taken up for final hearing. 3. Pursuance to the notice issued to the Respondent No. 1 for final disposal, the respondent no. 1 has appeared and is represented by Advocate P.D. Pise. Shri Parab appears for respondents 2 A and 3. Vide orders dated 18th February, 2011, this Court has observed that since rest of the respondents are not contesting respondents, notice for final disposal is 2 wp8524.09.sxw required to be issued only to respondent no. 1. 4. The petitioner had filed a suit for perpetual and mandatory injunction. The said suit was decreed by Judgment and order dated 11th July, 2002. In the issues framed by the learned trial Judge, issue no. 5 was framed as whether the plaintiffs are entitled to permanent injunction and it was answered as ‘yes’, however, in the operative part of the Judgment and decree there was no injunction granted as claimed for. As such, the petitioner filed a diary application for correction of the decree. The same was rejected. Thereafter, an appeal was filed. Alongwith it, an application for condonation of delay was also filed. The same is rejected. Hence, the present petition. 5. Shri Mirajkar, the learned Counsel appearing on behalf of petitioner submits that the petitioners had bonafidely under legal advice filed an application for correction of the decree. It is submitted that only after the same was rejected, it was found necessary to file an appeal. It is, therefore, submitted that in the circumstances the delay ought to have been condoned. 6. Shri Pise and Parab, the learned Counsels appearing on behalf of the 3 wp8524.09.sxw respondents vehemently oppose. They submit that delay is of more than three years and as such the learned Appellate Court has rightly refused to condone the delay. 7. It is a settled position of law that the length of delay is not material. What is material is as to whether a person seeking condonation of delay makes out a case of ‘sufficient cause’ for condonation of delay. From the record it can clearly be seen that though the learned trial Judge has framed an issue, as to whether the plaintiffs are entitled to permanent injunction as claimed and answered the same as ‘yes’, there was no direction to that effect in the operative part of the judgment. As such under legal advice, the petitioners filed a diary application for correcting the decree. The same was rejected vide order dated 8th March, 2005. Thereafter, the petitioners have filed an appeal alongwith an application for condonation of delay. 8. It can thus clearly be seen that petitioner, since was given legal advice that the appropriate remedy for him was to file a diary application for correction of decree, he was bonafidely prosecuting the same. Only after the said application was rejected, it was found necessary to file an appeal, which was immediately filed alongwith an application for condonation of 4 wp8524.09.sxw delay. 9. In that view of the matter though the delay in filing the appeal was more than three years, I find that petitioner has made out a case of ‘sufficient cause’ for condoning the delay. This fact has been overlooked by the learned Appellate Court. In that view of the matter, I find order passed by the Appellate Court is not sustainable in law. 10. The petition is, therefore, allowed. Impugned Order dated 27th July, 2009 is quashed and set aside. 11. The application filed by the present petitioner for condonation of delay is allowed. The appeal is directed to be heard on merits. The petitioner is directed to pay cost quantified at Rs. 1000/- payable to the respondent no.1 and Rs. 1000/- to respondent nos. 2A and 3 i.e. Rs. 2000/- in total. The cost be deposited in the Appellate Court within a period of eight weeks from today. On deposit of cost, the respondent no. 1 be entitled to withdraw Rs. 1000/- and respondent nos. 2 A and 3 would be entitled to withdraw Rs. 500/- each. (B.R. GAVAI, J)