:1: bgp IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.3471 OF 2008 NO.3471 OF 2008 NO.3471 OF 2008 National Textile Corporation (SM) Ltd. ..Petitioner Vs. The New India Assurance Co.Ltd. & Ors. ..Respondents Mr.Z.B.Kamdir with Dhiren Shah for the petitioner. Mr.V.Y.Sanglikar for respondent No.1. Mr.Z.T.Andhyarujina with Ashok Varma i/b. Tejpal & Co. for respondent No.4. CORAM CORAM CORAM :- V.C.DAGA,J. :- V.C.DAGA,J. :- V.C.DAGA,J. DATE DATE DATE : 23RD JANUARY, 2009 : 23RD JANUARY, 2009 : 23RD JANUARY, 2009 P.C. P.C. P.C. 1. Heard. Perused petition. 2. This petition, filed under Article 227 of the Constitution of India, is directed against the order dated 21st February, 2008 passed by the Principal Judge, Bombay City Civil Court, Bombay rejecting the application for condonation of delay as well as prayer for interim stay, consequently, dismissing appeal filed by the petitioner. THE THE THE FACTUAL MATRIX FACTUAL MATRIX FACTUAL MATRIX 3. The factual matrix reveals, that petitioner National Textile Corporation (SM) Ltd. ("the NTC (SM)" for short) is a statutory body, the majority of its shares are held by Central Government. :2: 4. The respondent No.1 New India Assurance Company Ltd. (‘The New India’ for short) is the owner of Flat No.6 in the building known as Mayfair House, 36, Little Gibbs Road, Malabar Hill, Mumbai - 400 006 (for short "the said flat). 5. The respondent No.3 M/s.Finlay Mills Ltd., a textile mills occupied the above flat as tenant of the New India. The respondent No.4 being a Director of respondent No.3 was in actual occupation of the said flat. 6. On 18th October,1989 the management of respondent No.3 was taken over by the Central Government under the provisions of the Textile Undertakings (Taking Over of Management) Act. One of the assets of respondent No.3 being the tenancy rights of respondent No.3 in the subject flat, it stood vested in the petitioner. That is how, the petitioner became the tenant of the subject premises/flat falling within the sweeps of the Public Premises (Eviction of Unauthorised Occupants) Act,1971 (for short "the Act"). 7. On 2nd October, 2002, Estate Officer of respondent No.1 issued a notice under the Act to respondent No.4 who continued to reside in the said flat. After hearing both the parties, Estate Officer of respondent No.1 passed an order dated 17th :3: December, 2002 declaring respondent No.4 to be in unauthorised occupation of the said flat. 8. In the year 2003, respondent No.4 preferred an Appeal against the order passed by Estate Officer of respondent No.1 before Bombay City Civil Court being Appeal No.1 of 2003 and 45 of 2004, which is pending. 9. On 14th March, 2007, during the pendency of Appeal filed by Respondent No.4, respondent No.1 initiated proceeding under the Act for eviction and for damages inter alia against petitioner. These proceedings led to passing of two orders under Section 5(1), 7(2) and 7(2A) of the Act. By the said order it has been declared that petitioner, respondent Nos.3 and 4 to be in unauthorised occupation of the said flat and directed their eviction from the said flat with direction to pay damages. 10. Aggrieved by the orders dated 14th March, 2007, petitioner preferred an appeal being Miscellaneous Appeal No.44 of 2008. However, while filing the said appeal, there was a delay of 309 days in filing the said appeal, therefore, petitioner filed an application for condonation of delay being Application No.78 of 2008 along with application No.77 of 2008 for stay of the order dated 14th March, 2007. :4: 11. By an order dated 21st February, 2008, the Bombay City Civil Court has rejected the application for condonation of delay and application for stay. 12. Being aggrieved by the said order, the petitioner approaches this Court by way of present writ petition. SUBMISSION SUBMISSION SUBMISSION 13. The learned Counsel appearing for the petitioner submits that the impugned order is without jurisdiction or in excess of authority of law and the same affects the fundamental as well as other rights of the petitioner as such it is illegal, null and void. He further submits that the delay was satisfactorily explained as such, the Court below ought to have condoned the delay. 14. The submissions made by the learned Counsel for the petitioner were strongly opposed by the learned Counsel appearing for the respondents and tried to demonstrate casual and negligent approach on the part of the petitioner in contesting present proceedings. :5: CONSIDERATION CONSIDERATION CONSIDERATION 15. The facts reveal that the impugned order was dated 14th March, 2007. The copy of the order was made available to the petitioner on 20th March, 2007. The appeal filed is delayed by 309 days. 16. The application for condonation of delay does not give material facts and particulars so as to explain the delay resulted in filing the appeal. In the application, general and casual statements are made. It is stated in the application that the Advocate for the petitioner had certain meetings with the Legal Manager. In the said meeting it was realised that certain documents pertaining to the proceedings were not available with the petitioner, including the proceedings filed by some other Advocate. Reading of these averments unequivocally demonstrates absence of details of the alleged meetings. It does not disclose which documents were required, which proceedings were pending between the parties, when the certified copies of the documents were obtained, when the Advocate left for abroad. Not a single material fact was disclosed in the application warranting Court to exercise discretion in favour of the petitioner. It is no doubt true that application for condonation of delay is required to be considered adopting liberal approach but it does not mean, it should be allowed casually without adopting judicial approach. :6: 17. Under the above circumstances, the learned Judge of the City Civil Court was perfectly justified in holding that the delay has not been explained. No good and sufficient cause was shown. 18. Condonation of delay is not a mere formality. The delay in filing appeal crates rights in favour of third party, if those rights are created, then those rights cannot be demolished lightly. Sufficient explanation inspiring judicial confidence is required to be furnished for condonation of delay, especially, when the third party rights are created by lapse of time. 19. Looking to the quality of application moved for condonation of delay, one has to reach to the conclusion that the application for condonation of delay was rightly rejected by the Court below. 20. I was also taken through the entire proceedings by learned Counsel appearing for respondent. He could successfully demonstrate negligence on the part of petitioner in contesting the litigation even before the Estate Officer. Considering the entire scenario and approach of the petitioner in contesting which litigation was casual and perfunctory is clear from the record. :7: 21. In the above view of the matter, no fault can be found in the impugned order. The impugned order cannot be said to be perverse or arbitrary. The view taken is reasonable and possible view. 22. In the result, petition is dismissed in limine. No order as to costs. (V.C.DAGA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.)