1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7717 OF 2008 Sultankhan Rahemankhan Pathan Petitioner versus Smt.Kulsumbai Haji abdul Raheman and others Respondents Vishwanath Talkute for petitioner. Vikas Mali for respondents 3 to 8. Dilip Bodake for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 25th March 2010 PC :- 1. Heard learned counsel for the parties. By order dated 29th July 2009 this Court directed that the petition shall be decided finally at the stage of admission. 2. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 24th September 2008 passed by the Trial Court by which an application for condonation of delay made by the petitioner has been rejected. The petitioner who is the first defendant in the suit filed by the first and second respondents purported to file an application praying for recall of the order recording 2 consent decree. There was a delay in filing the said application. The impugned order has been passed on the application for condonation of delay. 3. On 26th February 2010 when this writ petition was taken up for hearing, the learned counsel for first and second respondents submitted that the petitioner has filed only an application for condonation of delay and in fact the main application praying for setting aside the consent decree has not been filed. The petitioner has filed an affidavit dated 9th March 2010 in which it is stated that the application for setting aside the decree was filed along with application for condonation of delay and the main application has not been registered and numbered. 4. The learned counsel for the petitioners submitted that the delay was sufficiently explained by the petitioner. He pointed out that by order dated 26th September 2006 passed in Writ Petition No.6346 of 2006, liberty was granted to the petitioner to make an application before the Trial Court for setting aside the consent decree. He pointed out that the application for condonation of delay in preferring an appeal against the consent decree was dismissed against which the said writ petition was filed. He reiterated that the main application for setting aside the decree was filed along with the application for 3 condonation of delay. 5. The learned counsel for the first and second respondents submitted that the delay has not been explained properly. He submitted that moreover the main application is not at all maintainable. He invited my attention to the rejoinder filed by him and stated that even the exhibit number of the main application has not been set out by the petitioner. He submitted that the Roznama does not indicate that the main application has been filed. He, therefore, submitted that no interference is called for. 6. I have given careful consideration to the submissions. According to the case of the petitioner, the consent decree has been obtained by practicing undue influence and fraud on the petitioner by taking undue advantage of his illness. The petitioner purported to prefer an appeal on 23rd August 2005 against the said consent decree. An application for condonation of delay was made in the said appeal which came to be rejected by order dated 21st July 2006. A writ petition was immediately filed in this court. By order dated 26th September 2006, the petitioner was permitted to withdraw the writ petition with liberty to file an application before the same Court which had passed the consent decree. Thereafter on 12th December 2006, the present application has been preferred by the petitioner on the 4 basis of the liberty granted by this Court. 7. It is true that from the date of passing of the consent decree, there was a delay in preferring an appeal before the District Court. The application for condonation of delay was rejected by the District Court. Aggrieved by the said order, the aforesaid writ petition was filed. While disposing of the writ petition, a liberty was granted to the petitioner to file an application before the same Court. The contention of the petitioner is that the consent decree has been obtained by practicing fraud and misrepresentation. Considering the aforesaid peculiar facts, a sufficient cause was made out. The Trial Court ought to have condoned the delay by directing the petitioner to pay costs. 8. A contention was sought to be raised by the counsel for the first and second respondents that only an application for condonation of delay was filed and the main application for recalling or setting aside the decree has not been filed. There is no merit in the said objection. Apart from the fact that the petitioner has stated on oath that main application was filed, the main application could not have been numbered unless delay was condoned. Reliance is placed on Roznama of the proceedings. The said Roznama is of application for condonation of delay in which obviously there will be no reference to the main application for recalling the consent decree inasmuch as 5 unless the delay is condoned, the main application cannot be registered. Unless the main application is registered, there is no occasion to serve a copy thereof to the first and second respondents. There is no merit in the aforesaid contention raised by the first and second respondents. 9. It is obvious that even if delay is condoned, all objections of the first and second respondents to the maintainability of the application remain open and this court has not at all considered the said issue. Considering the facts of the case, the amount of costs has to be quantified at Rs.7,500/-. 10. Hence, I pass following order :- A) The order dated 24th September 2008 is quashed and set aside and Civil Miscellaneous Application No.10 of 2006 is hereby allowed subject to petitioner paying costs of Rs.7,500/- to the first and second respondents within a period of eight weeks from today; B) Payment of costs will be a condition precedent. Deposit of the amount of costs with the Trial Court within the stipulated time will be treated as sufficient compliance; 6 C) After compliance is made by the petitioner, the Trial Court to register the main application and will decide the same expeditiously. It is made clear that all contentions of the parties on the main application including the contention raised by the first and second respondents about maintainability of the said application are expressly kept open; D) The writ petition is allowed in above terms. (A.S.OKA, J.)