IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2911 OF 2006 WRIT PETITION NO. 2911 OF 2006 WRIT PETITION NO. 2911 OF 2006 Satish Kumar Modi ... Petitioner V/s The Slum Rehabilitation Authority & anr.... Respondents Mr. A.Y. Sakhare with Shashipal Shankar for the petitioner. Ms. Bhamblani for the respondents. Mr. U.S. Patole, Asstt. Official Liquidator present. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 4TH MAY, 2006 DATED: 4TH MAY, 2006 DATED: 4TH MAY, 2006 P.C. P.C. P.C.: 1. Heard learned counsel for both parties. Perused the record. 2. Rule. Rule made returnable forthwith. 3. This is a petition wherein the order passed by the lower appellate Court dated 20.2.2002 dismissing the notice for condonation of delay is challenged. Misc. 2 Application No. 137 of 2005 in Appeal (Stamp) No. 1602 of 2005 in Interim Notice No. 706 of 2004 in R.A.D. Suit No. 144 of 2004, which was for condonation of 28 days’ delay which came to be dismissed after hearing both parties. 4. The petitioner appears to be the original plaintiff who filed the suit for injunction simplicitor. During the pendency of the suit, an interim injunction Notice No. 706 of 2004 was taken out to restrain the defendant Nos. 1 and 2 temporarily for taking the aforesaid possession and from obstructing possession of the plaintiff in respect of the suit premises. The said injunction notice came to be decided by judgment and order passed on 3.5.2005. The plaint of the plaintiff was also rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, and the plaintiff was held liable to pay compensation of Rs.5,000/- to defendant No.1 as well as the Official Liquidator who was holding property in question. 5. The learned counsel for the petitioner has circulated compilation containing impugned order as well as various other orders passed by this Court and copies of the plaint and pleadings regarding the pending 3 dispute between the parties. 6. After hearing both sides and perusing the entire compilation, it is seen that the delay condonation application was required to be adjudicated only on the basis whether there was sufficient cause which caused the delay of 28 days. It was the contention of the present petitioner that he being a layman was not knowing the period of limitation of 30 days’ and not 60 days’. It was also submitted that the petitioner could not contact his advocate and he was out of Bombay and, therefore, he could not instruct his advocate to file the appeal. The lower appellate court has observed that ignorance of law is no defence. Further, it is observed that the ground that the petitioner could not contact his lawyer is of no consequence and cannot be held to be sufficient ground. 7. However, the real reason for rejection of the application for condonation of delay appears to be that the lower appellate Court, while deciding this application has, in fact, gone into the merits of the dispute and recorded finding to the effect that on the basis of facts and record the petitioner has no right to retain the possession of the suit premises and under the 4 circumstances, as it was further observed, the lower Court was of the view that it was nothing but delaying tactics of the petitioner because the petitioner has deliberately filed the appeal late and then has sought relief by taking application for delay condonation in order to delay the proceeding. 8. In my considered view, after perusing the order passed by the lower appellate Court, it is found that the lower appellate Court appears to be erroneous in the sense that no merits could be dealt with while adjudicating the condonation of delay and the reasoning should be restricted only whether there is sufficient ground to condone the delay or not. Therefore, without further elaboration, I am of the view that the order passed by the lower Court on the basis that there is no merit in the appeal cannot sustain in law and has to be set aside especially when the delay is marginal to the extent of 28 days and appears to be explained sufficiently. 9. Under the circumstances, I hold that the impugned order passed by the lower appellate Court is liable to be set aside. 5 10. In the result, the Rule is made absolute. The petition is allowed in terms of prayer clause (a) and stands disposed of with no order as to costs. 11. The parties shall be at liberty to move the lower appellate Court for expeditious hearing of the appeal. 12. The appeal to be registered accordingly by the lower appellate Court and till then the status-quo order passed by this Court shall stand continued. 13. Leave to amend. .....