SRK 1 Format (A.S.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.220 OF 2010 IN LETTERS PATENT APPEAL ST. NO.18025 OF 2010 IN WRIT PETITION NO.9501 OF 2009 Charu K. Mehta ... Applicant Versus The Joint Charity Commissioner, Greater Mumbai Region, Mumbai and others. ... Respondents Mr. Aspi Chinoy, Senior Advocate with Mr. Vineet Naik, Mr. Raj Patil, Mr. A. Parab, Mr. Amir Arsiwala i/by M/s. Thakore Jariwala Associates for the applicant. Mr. D.D. Madon, Senior Advocate with Mr. Prateek Sakseria i/by M/s. Daru Shah & Co. for respondent No.2. Mr. Mahesh Jethmalani, Senior Advocate with Mr. Pranav Badheka and Mr. Abhishek Singh i/by M/s. Mulla & Mulla for respondent Nos.11 to 13. Mr. Sabiha Mukadam i/by Mr. Dinesh Tiwari for respondent No.9. CORAM : MOHIT S. SHAH, C.J. & DR, D.Y. CHANDRACHUD , J. Friday, October 1, 2010 P.C. This is an application for condonation of delay in filing the appeal. 2. The order under appeal was pronounced on 2 March 2010, the certified copy was applied for on 8 March 2010, certified copy was ready on 5 April 2010 but it was collected on 4 June 2010 and the appeal came to be filed on 19 July 2010. The delay in filing the appeal, therefore, works out to 74 days. SRK 2 Format (A.S.) 3. The appellant is aged 68 years and is the wife of respondent No.11 and mother of respondent Nos.12 and 13. As far as respondent Nos.2 to 10 are concerned, they are either present trustees or former trustees of the Trust of which the appellant is also a trustee. 4. The present appeal is filed against the order of the learned Single Judge arising from the order of the Joint Charity Commissioner, Mumbai in respect of the allegations of mis-management, misfeasance, malfeasance and misconduct of some of the trustees. 5. The explanation given by the applicant for the delay of 74 days is as under: (a) She was originally advised that the Letters Patent Appeal is not maintainable and to move the Apex Court. Subsequently, when the applicant consulted the advocate for moving the Apex Court, the applicant was advised to file the present LPA. (b) The applicant's mother is about 90 years old and she was very serious in the months of May and June 2010. As the applicant had to attend to her mother regularly, she could not instruct her advocate. (c) The applicant has been involved in plethora of proceedings ranging from the Apex Court to the Charity Commissioner and the applicant was severely constrained due to paucity of SRK 3 Format (A.S.) time. The certified copy of the order was ready on 5 April 2010 but her advocate's clerk had to go to native place and and returned only on 1 June 2010 and finally collected the copy on 4 June 2010. In the meantime, the Court was closed for vacation till 7 June 2010. (d) Thereafter the applicant approached her legal advisors with a view to challenge the impugned order and due to differences in legal opinion, there was some delay in filing the appeal which came to be filed on 19 July 2010. 6. The application is opposed by affidavit-in-reply alleging that the applicant has made various incorrect statements. During the hearing of this application, the learned counsel for the respondents opposed the application and submitted that the applicant herself is party to LPAs which were decided on 3 March 2009 wherein it was held that LPA is maintainable against the order of the learned Single Judge arising out of the order of the Joint Charity Commissioner. It is stated that after the said order, the applicant has filed LPA in September 2009. It is, therefore, not possible to accept the applicant's case that she had to move the Apex Court believing that LPA is not maintainable. The concerned advocate who advised the appellant that LPA is not maintainable and advised to file the SLP has not filed any affidavit. It is denied that the applicant's mother was not well and she was required to be attended to by the applicant. The appeal is filed by the Constituted Attorney of the applicant and the applicant's sons are looking after the litigation. Hence the explanation is not satisfactory. SRK 4 Format (A.S.) It is also submitted that several litigations as mentioned in the affidavit are pending. The learned counsel for the respondents has also heavily relied on the decision of the Apex Court in Pundlik Jalam Patil (dead) by LRs. v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448 in support of the contention that the Court is not to condone the delay where the application for condonation of delay contains incorrect statements. 7. Having heard the learned counsel for the parties, the delay of 74 days caused in filing the appeal deserves to be condoned. 8. As regards the applicant's case that her mother aged 90 years was not well in the entire months of May and June 2010 is sought to be contested in the following terms: "I am not aware hence deny that the mother of the applicant was very serious during the entire month of May or June as alleged or otherwise. No particulars are provided. The allegation is vague......" In view of the above, it cannot be said that the applicant has made an incorrect statement about the illness of her mother. 9. As regards the contention that though the applicant's mother was not well in the months of May and June 2010, but no explanation is offered for the months of March and April, 2010, overlooks the settled legal position that the applicant is not required to explain inaction during the period of limitation and that the explanation is required to be offered only for the period beyond the period of limitation. SRK 5 Format (A.S.) 10. As regards the contention that the applicant is a party to the litigation wherein it was held by this Court as far back as on 3 March 2009 that the LPA is maintainable, it is true that the judgment was delivered in the appeal between the parties. However, having regard to the fact that in the matter of maintainability of LPA, different views are being taken from time to time and from case to case, the applicant cannot be said to have made a false statement. 11. For the reasons aforesaid, we find that sufficient cause is shown for condonation of delay of 74 days in filing the appeal. Hence, delay in filing the appeal is condoned. Application is allowed. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.