[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.541 OF 2008 IN APPEAL {LODGING} NO.852 OF 2007 IN NOTICE OF MOTION NO.2355 OF 2004 IN SUIT NO.2423 OF 2004 Smt. Gopana Krishna Kumar & Ors. .... Appellants Vs. Mr. Pravin Dalapatram Desai .... Respondent Sarvasri V.Y. Sanglikar i/b K.S. Vakil for the Appellants. Sri M. Monterio for the Respondent. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI P.B. MAJMUDAR, JJ. DATED: DATED: DATED: JUNE 27, 2008 P.C: P.C: P.C: 1. Heard. Perused the records. This is an application for condonation of delay of 245 days in filing the appeal. Undisputedly, the impugned order was passed on 22-3-2007. The appeal has been filed on 1-11-2007. Only explanation in the affidavit in support of the notice of motion is that the appellants are residing abroad. The residential addresses which are disclosed of the appellant Nos.1 and 2 in the memo of the appeal indeed disclose that they are residing abroad whereas the appellant No.3 seems to be residing at Mumbai. It has been stated in the affidavit that the appellant No.3 [2] used to reside in India but since last few years she has been residing abroad in USA. As to when she ceased to reside in India has not been disclosed in the affidavit. The affidavit also discloses that the appellant No.1 regularly visited India once in six months. Apparently, there is no explanation placed on record revealing sufficient cause for the delay of 245 days in filing the appeal. 2. It was sought to be contended that the appellants have a very good case on merits and in the case of condonation of delay a liberal view is required to be taken. As regards the appellants’ case on merits is concerned, the learned single Judge in the impugned order has clearly observed that the maintainability of the suit itself is in doubt in view of Section 47 of the Code of Civil Procedure apart from availability of appropriate remedy under Order 21 of the CPC. Besides, considering the averments in the affidavit in support of the notice of motion, there is hardly any justification to contend that there is a good case on merits for the appellants. Undisputedly, the suit is filed under Section 6 of the Specific Relief Act. The claim for restoration under Section 6 of the Specific Relief Act has to be established only on the basis of possession of the premises within six months prior to the date of filing of the suit. The averments in the affidavit [3] disclose that the appellants are residing abroad for last few years. There is no specific disclosure in the affidavit as to at what point of time they shifted their residence abroad. 3. Undoubtedly, in the case of condonation of delay the Courts take liberal view. However, liberal view does not mean that any number of days delay is to be condoned, without there being any justification disclosed for the delay in approaching the Court for filing the appeal. There has to be some cause shown for condonation of delay. In the case of delay once it is apparent that there was absolutely no cause disclosed for the delay in approaching the Court for filing the appeal, the question of taking liberal approach does not arise at all. 4. It is the case of the appellants themselves that every six months the appellant No.1 had been visiting India. 5. Undisputedly, the order was passed in March, 2007. It is their own case that in the month of March, 2007 the appellant No.1 had been in India and had approached his Advocate. It is further stated in the affidavit that in the month of March, 2007 the copy of the order was not available and, therefore, it was informed to the [4] appellant No.1 by his Advocate that decision for filing an appeal would be taken after getting the copy of the impugned order. It has been stated that the copy of the impugned order was made available in the month of June, 2007. However, it is not stated as to what prevented the appellants from taking decision to file an appeal immediately thereafter. It is pertinent to note that the affidavit also discloses that even legal opinion was taken in regard to filing of an appeal in UK. As to when such information was taken is not disclosed. 6. The affidavit further discloses that the appellants were in communication with their Advocate telephonically as well as by way of e-mail and this obviously discloses that there was sufficient opportunity for the appellants to give necessary instruction to the Advocate in the matter of filing of the appeal. However, the affidavit is totally silent about the inaction in that regard by the appellants. 7. In short, the affidavit in support of the notice of motion does not disclose any cause for such a long delay of 245 days in filing the appeal. 8. In the circumstances, we find no case being made out for condonation of delay. The notice of motion, therefore, is rejected. In view of rejection of the [5] notice of motion, the Appeal (lodging) No.852 of 2007 stands dismissed. (P.B.Majmudar, J.) (R.M.S.Khandeparkar, J.) sjs/J8nm541.8 sjs/J8nm541.8 sjs/J8nm541.8