* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3837 OF 2009 IN FIRST APPEAL (ST) NO. 20195 OF 2006 IN CHARITY APPLICATION NO. 17 OF 2006 Dr.Anthony Sequeira & Ors. .........Applicants v/s. Cyrus Behram Irani & Ors. ........Respondents ---------- Mr. Zubin Behramkamdin i/by. Wadia Ghandy & Co. Advocate for applicants. Mr. R.M. Vasudeo, Advocate for respondents no.1 and 2. Ms. V.S. Mhaispurkar, Advocate for respondents no.4 and 5. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 21ST NOVEMBER, 2009. P.C. :- 1. Heard learned counsel for both sides. 2. This Application is filed for condonation of delay of 269 days in filing the present Appeal to challenge the judgment and order dated 12th November, 2008 passed by the Bombay City Civil court dismissing Charity Application No. 17 of 2006. The application is opposed by respondents no.1 and 2. Respondent no.3 is * 2 * absent despite service. Respondents no.4 and 5 are the Charity Commissioner and the Joint Charity Commissioner respectively. 3. The case sought to be made out in the application for condonation of delay is that, after the Charity Application No.17 of 2006 was dismissed on 12th November, 2008 the applicants filed writ petition being Writ Petition No. 2759 of 2009 in this court to quash and set aside the order of the Joint Charity Commissioner dated 16th/22nd June 2006 and the order of the Bombay City Civil Court dated 12th November, 2008. By the order dated 29th June, 2009 the Writ Petition was dismissed on the ground that the applicants have a right of appeal against the impugned order under Section 72(4) of the Bombay Public Trusts Act, 1960 and were at liberty to file an Appeal. The applicants contend that since they were prosecuting the proceedings before another forum, the time taken by these proceedings should be excluded in calculating the delay. The above facts pleaded indicate, that the applicants are seeking exclusion of time under Section 14 of the Limitation Act, 1963 without being specific about it. The relevant part of Section 14 of the Limitation Act reads as follows : 14. “ Exclusion of time of proceeding bona-fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is * 3 * unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Nothwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation- For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. . The applicants cannot claim benefit of the above provision since the averments in the affidavit-in-rejoinder filed by them make it more than clear that filing of and prosecution of the writ petition by them was not in good faith. The writ petition filed was not under belief that it was the only remedy available to them which later on turned out to be defective. Affidavit-in-rejoinder, tendered today shows that the legal advisors of the * 4 * applicants had given them a choice of either filing an appeal in the High Court or a writ petition. The applicants were advised that filing of the Writ Petition was not subject to the time limit of 30 days, whereas the time limit for filing the appeal had already expired. Therefore, it is a case where the applicants took a conscious decision of choosing filing of a Writ Petition over filing of the Appeal despite knowledge that the same is specifically provided for under Section 76(4) of the Bombay Public Trusts Act, 1960. In view of this specific provision of appeal, the Writ Petition was not at all maintainable. At the time of hearing of the writ petition, when attention of the learned counsel appearing for the applicant was drawn to the position in law, he had to concede and withdraw the Writ Petition. In the circumstances, it cannot be said that the applicants were bonafidely pursuing their case before some other court. 4. Even if the applicants were to be given the benefit of Section 14 above, it does not solve their problem because admittedly, the writ petition filed by the applicants was on 25th February, 2009 which was beyond the period of limitation of 30 days for filing Appeal from 12th November, 2008. Even if the period of pendency of writ petition is excluded, the applicants are required to explain the period prior to the filing of the Writ Petition i.e. from 12-12-2008 to 25-2-2009 The application does not offer any explanation whatsoever for the period. An attempt has been made to explain that period in the Affidavit-in-rejoinder. It is * 5 * stated that the applicants decided to transfer the matter to their present advocates, Solicitors M/s.Wadia Ghandy & Company. The appellants were also required to discuss the matter with the City Civil Advocates and transfer the papers to M/s.Wadia Ghandy & Company who had prepared the writ petition pursuant to their instructions. This took some time which accounts for delay in filing the Writ Petition on 25th February, 2009. This explanation offered is hardly satisfactory and is no explanation at all. Hence, the Civil Application is dismissed. 5. In view of dismissal of the Civil Application, First Appeal (St) No. 20195 of 2009 does not survive. The same is accordingly disposed off. [SMT. R. P. SONDURBALDOTA, J]