KBP 6005-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6005 OF 2008 Harish Sunderlal Mehta ..Petitioner Vs. Abdul Sami Mohammed Patel ..Respondent ......... Mr.Anil Singh i/b.Mr.D.R.Shah, advocate for the petitioner. Mr.Vijay Ghavat, advocate for respondent. ......... CORAM : A.S.OKA, J.. DATE : 13 th August, 2009. P.C. : 1] The submissions of the learned counsel appearing for the parties were heard on the last date. By this writ petition under Article 227 of the Constitution of India, the petitioner original defendant has taken exception to the order dated 17 th July, 2007 passed by the appellate bench of the Court of Small Causes, by which delay in preferring an appeal has been condoned. 2] The respondent filed a suit for eviction against the petitioner in the Court of Small Causes. The contention of the respondent was that the petitioner was a licensee of the suit premises. The petitioner had filed a declaratory suit for declaration that he was a tenant of the said premises of the respondent. By a common judgment delivered on 5 th and 6 th September, 2002 the learned Judge of Court of Small Causes dismissed the suit for possession filed by the respondent and decreed the declaratory suit filed by the petitioner. KBP 6005-08.sxw 2 3] The respondent preferred an appeal in the year 2003 for challenging the decree passed in favour of the petitioner in the declaratory suit. After the noticing in the year 2007 that the respondent had not preferred any appeal against the decree of dismissal passed in his suit, a prayer was made to the appellate court for treating the appeal as an appeal against both decrees. On 17 th August, 2007 the appellate court did not accept the said request and directed the respondent to file a separate appeal. Accordingly, in December, 2007 a separate appeal was preferred by the respondent along with an application for condonation of delay. The impugned order has been passed condoning the delay. 4] The learned counsel appearing for the petitioner submitted that the memorandum of appeal preferred by the respondent in the year 2003 itself shows that the respondent never intended to prefer any appeal against the decree passed in this suit. He invited my attention to the memorandum of appeal and pointed out the corrections made therein. He submitted that the reasons given in the application for condonation of delay are false and in any case there was no justification for such a long delay. He submitted that the changes made in memorandum of appeal filed by the respondent itself show that the respondent and his advocate were aware at that time of the requirement of filing a separate appeal against the decree dismissing the suit filed by the respondent. He submitted that the impugned order is perverse. He has placed reliance on a decision of the Division Bench of this Court in the case of Charity Commissioner Vs. Padmavati and ors [1956 BCI 216]. He also invited my attention to the reasons recorded by the appellate court. He submitted that the delay is deliberate. He pointed out that the intention of the respondent is very clear from the fact that in the cause title of earlier appeal, the description of suit filed by the respondent was incorporated which KBP 6005-08.sxw 3 has been subsequently scored out. He submitted that this itself shows that in the year 2003 the respondent was fully posted with the knowledge that the appeal preferred by him was confined to decree passed in declaratory suit of the petitioner. The learned counsel for the respondent relied upon the decision of Apex Court in the case of Rafiq and Another Vs. Munshilal and another [(1981) 2 SCC 788]. He submitted that no interference is called for. 5] I have carefully considered the submissions. The petitioner has invoked extra ordinary jurisdiction of this court under Article 227 of the Constitution of India. The jurisdiction of this court under Article 227 of the Constitution of India is not akeen to the appellate jurisdiction. It is a power of superintendence which is to be exercised to ensure that the courts sub- ordinate to this court remain within their authority. It is settled law that the extra-ordinary jurisdiction under Article 227 cannot be invoked for correcting each and every erroneous order. 6] In the present case, it is not in dispute that the suits filed by the petitioner as well respondent were heard together. The suits have been decided by a common judgment and the trial court discarded the case of respondent that the petitioner was merely a licensee and accepted the case of petitioner that he was a tenant in the suit premises. It is necessary to refer to the memorandum of appeal filed on 23 rd December, 2002. It is true that in the cause title of the appeal the number of the suit for possession filed by the petitioner appears and later on the same has been scored out. Perusal of the memorandum of appeal shows that the respondent has referred to both the suits which are decided by a common judgment. In paragraph 7 of the memorandum of appeal it is stated that : KBP 6005-08.sxw 4 “7. Being aggrieved by the oral Judgment and Order passed in the above suits, the appellant prefers this appeal....” (emphasis added) The perusal of the grounds, in particular ground `c’ shows that the respondent intended to challenge both the degrees, however, in the prayer clause, a prayer is made to set aside the decree passed in the declaratory suits and there is no prayer made for setting aside the decree passed in suit filed by the respondent. 7] The fact that an appeal was preferred by the respondent against the common judgment shows that the respondent intended to challenge the findings recorded by the trial court in the common judgment. The fact that an appeal was preferred incorporating grounds of challenge to decrees passed in both the suits clearly shows that the respondent had no intention of accepting the decree passed in his suit. The petitioner approached the appellate court for challenging the common judgment passed by the trial court. In my view, these peculiar circumstances were sufficient for the appellate court to condone the delay. In the impugned order, the appellate court has rightly observed that this is not a case of deliberate delay on the part of respondent. However, it is true that there is some default on the part of respondent and his advocate. The appellate court has taken a justice oriented approach and has condoned the delay. Merely because it is possible to contend that a stricter view could have been taken by the appellate court, the extra ordinary jurisdiction of Article 227 of the Constitution of India cannot be exercised. KBP 6005-08.sxw 5 8] Considering this aspect and considering the discussion made above this is not a case for interference. The writ petition is accordingly rejected. The respondent shall pay additional costs of Rs.25,000/- to the petitioner within a period of three weeks from today. The deposit of amount of costs in the appellate court within the stipulated period be treated as a compliance of this order. If compliance is not made, the delay condonation application shall stand dismissed. ( A.S.OKA, J. )