Ash - 1 - wp-9304.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9304 OF 2010 Mahanagar Telephone Nigam Ltd. .. Petitioner Vs M/s. Beejay Enterprises. .. Respondent -- Shri V.V. Shukla i/by M/s. Shukla & Associates for the Petitioner. Shri Ketan Parekh & Ms Kunjal Sanghavi i/by K.R. Parekh & Co. For the Respondent. -- CORAM : A.S. OKA, J DATED : 22ND DECEMBER, 2010 P.C. . On the last date, the submissions of the learned counsel appearing for the parties were heard and the parties were put to notice that the Petition will be disposed of finally at the stage of admission itself considering the narrow controversy involved in the Petition. 2. By this Petition under Article 227 of the Constitution of India, the challenge is to the order dated 20th September, 2010 passed by the Appeal Bench of the Court of Small Causes. Ash - 2 - wp-9304.10.sxw 3. The Respondent is the Original Plaintiff. The Petitioner is the Original Defendant. In a suit filed by the Respondent in the Court of Small Causes, the decree was passed directing the Petitioner to pay a sum of Rs.71,41,640/-. An appeal was preferred by the Petitioner before the Appeal Bench of the Court of Small Causes. As there was a delay in preferring the appeal, an application for condonation of delay was made praying for condonation of delay of 186 days in preferring the appeal. By the impugned order, the Appeal Bench of the Court of Small Causes has rejected the application for condonation of delay. 4. The learned counsel appearing for the Petitioner submitted that in the application for condonation of delay, detailed reasons were set out for explaining the delay. He pointed out that the detailed explanation has been ignored by the Appeal Bench of the Court of Small Causes. He submitted that considering the drastic nature of the impugned decree, a justice oriented and liberal approach should have been adopted by the Trial Court. The Respondent opposed the Petition by pointing out that there is a gross unexplained delay on the part of the Petitioner. He pointed out that even an application for certified copy was made on 12th November, 2009 i.e. after the expiry of the prescribed period of Ash - 3 - wp-9304.10.sxw limitation. He submitted that the view taken by the Appeal Bench is reasonable and proper and no interference is called for. 4. I have given careful consideration to the submissions. As stated earlier, the decree which was subject matter of challenge in Appeal directs the payment of the sum of Rs.71,41,640/-. In the application for condonation of delay, the detailed reasons have been set out for delay. Even in the Petition, the Petitioner has set out what has transpired after the decree was passed. It is contended in the application for condonation of delay that the officers of the Petitioner were in touch with the Advocate on record in the Trial Court. However, the application for grant of certified copy of the impugned order was belatedly made by the Advocate on 12th November, 2009 and he collected the certified copy of the impugned order on 8th January, 2010. It is stated that though the certified copy was ready on 26th November, 2009, the Advocate collected the same on 8th January, 2010. He stated that after receiving the certified copy of the impugned order, legal opinion was taken and it was decided to prefer an appeal. In Paragraphs 10 and 11 of the application, the difficulty in procuring the amount of Court fees payable on appeal has been set out as the Court fee amount was fairly high. Ash - 4 - wp-9304.10.sxw 5. It is true that in the application for condonation of delay, there is no detailed explanation for the delay from 7th October, 2009 to 12th November, 2011. Moreover, after receiving the certified copy of the impugned order, on 8th January, 2010, the Petitioner waited for three months to prefer an appeal. It is settled law that a liberal and justice oriented approach is to be adopted by the Court while deciding the application for condonation of delay under section 5 of the Limitation Act, 1963. Occasion for seeking condonation of delay arises only when there is a default on the part of a litigant. In the present case, considering the nature of the decree under challenge, the delay ought to have been condoned by taking a liberal view as there were sufficient reasons set out for taking a liberal view. Sufficient cause was made out. The Respondent could have been compensated by ordering the Petitioner to pay heavy costs. Considering the nature of the decree, the amount of costs deserves to be fixed at Rs.50,000/- which will have to be paid as a condition precedent. 6. Hence, I pass the following order :- ORDER (I) The impugned judgment and order dated 20th September, 2010 is quashed and set aside and the Misc. Notice No. 420 of 2010 is made absolute by Ash - 5 - wp-9304.10.sxw condoning the delay subject to the Petitioner paying costs of Rs.50,000/- to the Respondent within a period of eight weeks from today. (ii) Deposit of the amount of costs with the Trial Court will be treated as a sufficient compliance. (iii) Payment of costs shall be a condition precedent. (iv) On failure of the Petitioner to pay or deposit the amount of costs within the stipulated period of eight weeks from today, the Petition will stand dismissed and the impugned order will stand. (v) The Petition is allowed on above terms. (vi) Hearing of the Appeal is expedited. JUDGE