1 wp 4567.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4567 OF 2010 Lata W/o Madhukar Ghorpade and another .. Petitioners Versus Kashinath S/o Dhondu Game and others .. Respondents Shri L. V. Sangit, Advocate for Petitioners. Shri R. N. Dhorde, Advocate h/f Shri V. R. Dhorde, Advocate for Respondent Nos. 1 to 3. CORAM : S. V. GANGAPURWALA, J. DATE : 18TH AUGUST, 2011. PER COURT : . Heard Shri Sangit, the learned counsel for petitioners and Shri Dhorde, the learned counsel for respondents. 2. The present petitioners had filed R.C.S. No. 593/2000 which came to be decreed. Aggrieved thereby the present respondents filed an appeal before the District Court. As there was delay in filing the appeal the respondents preferred an 2 wp 4567.10 application for condonation of delay. The said application is allowed. Aggrieved thereby present petition is filed. 3. Shri Sangit, the learned counsel for the petitioner submits that, the District Court has in a very casual manner condoned the delay. It was a case of inordinate delay of 1037 days. The District Court did not consider the fact that after the decree was passed, the petitioners had filed execution and thereafter the respondents filed an application for setting aside ex-parte decree. After filing the application for setting aside ex-parte decree, almost after three years filed the appeal. As such, it is not a case that the respondents were not aware about the judgment and decree. The learned counsel further contends that earlier the suit was registered as special civil suit bearing Spl. C. S. No. 264/1996. Thereafter, due to enhancement of the pecuniary jurisdiction of the Court of Junior Division, the suit was numbered as R. C. S. No. 593/2000. When because of administrative orders the matter is transferred, then in that case it is not necessary to issue the notice to the parties. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of Vivekananda Nidhi and othes Vs. Asheema Goswami reported in (2000) 10 S.C.C. 23. According 3 wp 4567.10 to the learned counsel grounds stated for condonation of delay cannot come within the ambit and purview of sufficient cause and the application could not have been allowed. 4. Per contra Shri Dhorde, the learned counsel for respondents submits that admittedly no notice was issued after the suit was renumbered as regular civil suit from the special civil suit. The advocate who was earlier appearing for the present respondents himself gave a pursis and thereafter did not participate in the said suit and an ex-parte decree was passed. The advocate did not advise about the remedy of appeal. Thereafter, the respondents on getting the legal advise filed an appeal. The District Court has considered all these aspects and has rightly condoned the delay. 5. With the assistance of the learned Counsel, I have gone through the judgment and order. It is a fact that, the suit earlier was registered as special civil suit and thereafter because of the enhancement of pecuniary jurisdiction of the Court of Civil Judge Junior Division, the matter was re-registered as regular civil suit. No notice was issued to the respondents. Thereafter, in fact, when the Court is changed and the registration of the suit is 4 wp 4567.10 also changed from special civil suit to regular civil suit notice is required to be issued to the parties. The pursis that is filed on record by the advocate of respondent does not bear the signature of respondents. The said advocate had also never participated in the proceedings till the judgment. All the facts leads credence to the case of the respondents that they had not instructed to appear and the advocate who was earlier appearing in the matter had caused his appearance after re-registration without the instructions. No doubt, when an application for setting aside ex- parte decree was filed and thereafter after two years the appeal was preferred. The District Court while considering this aspect has relied on the judgment in a case of Ratilal Jivanbhai Lalji vs. Kuvarben Chabildas Patel reported in 2009 (1) Mh. L. J. 770. So also it is trite law that for the wrong advise a litigant should not suffer. Moreover, the respondents have not gained by delay. The dispute revolves around immovable property. The District Court has taken a possible and plausible view. The jurisdiction of this Court under Article 227 of the Constitution of India cannot be invoked only on the ground that some other view also may be possible. 6. In the light of the above the writ petition is dismissed, 5 wp 4567.10 however, with no order as to costs. 7. Taking into account the delay that has been caused the lower Appellate Court shall decide the appeal as expeditiously as possible and preferably within a period of six (6) months. The appellants therein are directed to submit the paper book within a period of one month from today. [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11