CAC.232-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION No. 232 OF 2010 IN CIVIL REVISION APPLICATION (St.) No. 16312 OF 2010 Mr. Saraswati Coop. Housing Society Ltd. & Ors. .. Applicants Vs. Mr. Ganesh G. Saungur & Ors. ..Respondents Mr. P. S. Dani i/b Hitesh Vyas, for the Applicants. Mr. D. M. Gupte with F. M. Shaikh, for Respondent No.1. CORAM : R. C. CHAVAN, J. DATED : JULY 29, 2010. P.C. : 1. This application is for condonation of delay of 238 days, caused in preferring the revision against an order dated 20th April, 2009, passed by th learned trial Judge, below Exh.51 in S.C.S. No. 855 of 2007. According to the applicants, applicant had filed Writ Petition No. 8551 of 2009. This writ petition came up for admission before the writ Court on 21st June, 2010 and the said Court allowed the applicant to CAC.232-10 - 2 - withdraw the petition with liberty to file civil revision application as said writ petition was held not maintainable. Therefore, the applicants withdrew the said writ petition and filed a civil revision application on the very next day i.e. on 22nd June, 2010. 2. The learned counsel for the respondents, i.e. original plaintiffs, has raised a very serious objection for condonation of delay. He submits that it cannot be said that the applicants had been prosecuting with due diligence a civil proceeding in a wrong Court. He submits that after the order was passed by the trial Court, the evidence of the plaintiffs has been recorded and the issues have been recast and therefore, the application for condonation of delay may be rejected. In support of his contention, he relied upon judgment of this Court in case of – Pramila D. Tathye & Ors. Vs. Shantabai alias Shalinibai Ramkrishna alias Bhaurao Tathye & Ors. [ 2008(Supp.) Bom.C.R.286] . In that case the reasons which prevailed upon the Court to uphold the order of the District Court, rejecting the application for condonation of delay were as under- “8. The affidavit to the application for condonation of delay is also as vague as it could be and there is no definite CAC.232-10 - 3 - verification about paragraph No.1 an a vague general statement is made that the facts stated in the application are partly true to his personal knowledge and partly true to the information received from the Counsel. The Court cannot take these things lightly because the delay is of ten years, six months and nine days and certain rights of the parties have crystallized in the meanwhile. Therefore, in my opinion, it cannot be said that the petitioners can be said to have acted with due care and caution, which is required for claiming exclusion under section 14 of the Limitation Act. 9. The application for condonation of delay has been most casually drafted and on such application the enormous delay cannot be condoned causally. That apart, though it may not be very relevant, fact remains that after filing of the appeal before the District Court having taken the papers from the High Court way back on 19.8.1994, the application for condonation of delay has been decided by the impugned order on 18.7.2003.” 3. Such are not the facts of the present case, as there is delay CAC.232-10 - 4 - due to prosecuting the cause in wrong forum. In the case of Pramila Tathe (cited supra) the appeal ought to have been filed with the District Court but it was filed before the High Court wrongly. In this case, the applicant had invoked the writ jurisdiction of this Court. It is not that because of availability of alternate efficacious remedy, writ Court cannot entertain a petition. The is a self imposed restrictions by the writ Court on its powers and therefore, it would always be open for a writ Court in a given case to entertain a petition under Art. 227 of the Constitution in its power of superintendence, in spite of existence of an alternate remedy, if a case is made out. If the writ Court declines to exercise writ jurisdiction and allows party to invoke alternate remedy, it cannot be said that the applicant was not persecuting the cause with due diligence, and therefore, the learned Counsel for the respondents is not right in resisting the application for condonation of delay. Application is therefore, allowed. Delay is condoned. Sd/- [R. C. CHAVAN, J.]