1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CAO NO. 542/2010 IN MCA (Rest.) ST. NO. 4278 OF 2010 IN WRIT PETITION NO. 5464 OF 2009 (Smt. Kamlabai Rajaram Yadav vs. Harshad Babulal Lathiya & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 19, 2010. Heard Shri Raut, learned counsel for the petitioner and Shri S.P. Deshpande, learned counsel for the respondents. Shri Deshpande, learned counsel has pointed out that there is actually delay of 26 days, however, the explanation is given only in relation to two days. I have perused the papers. The application is supported by personal affidavit of learned counsel for the petitioner and I do not find any malafides in the matter. Hence, delay is condoned but same is subject to payment of cost of Rs.500/- by the applicant/ petitioner to the respondent by 31st July 2010. Writ Petition No. 5464 of 2009 stands restored subject to payment of cost as mentioned above. WRIT PETITION NO. 5464 OF 2009 Heard Shri Raut, learned counsel for the petitioner and Shri S.P. Deshpande, learned counsel for 2 the respondents. Shri S.P. Deshpande, learned counsel for the respondents has pointed out that there was earlier writ petition before this Court and it was withdrawn. Shri Raut, learned counsel states that in that writ petition challenge was only to order refusing to condone delay and on merits, no challenge was raised. Hence, it was allowed to be withdrawn with liberty. Grant of liberty is not in dispute. In this situation, I have heard both counsel on merits. According to Shri Raut, learned counsel, the appeal filed was under Order 43, Rule 1(d) of Civil Procedure Code and he contends that as delay in filing MJC was not condoned, it is an order on MJC itself and hence appeal was maintainable. Shri Deshpande, learned counsel is opposing this. According to him, the analogy which is applicable in the matters of appeal cannot be extended to MJC proceedings. The aspect has not been gone into by the trial Court. The judgment of the Hon'ble Apex Court in the case of Shyam Sunder Sarma vs. Pannalal Jaiswal, reported at AIR 2005 SC 226, needs to be looked into to find out whether such order on RMJC can be considered an order on MJC, to support and sustain an appeal under Order 43, Rule 1(d) of C.P.C. As the appellate Court has not considered that aspect, the impugned order dated 10.02.2009 passed below Exh. 12 in MCA No. 42 of 3 2007 is quashed and set aside. MCA No. 42 of 2007 is restored back to the file of District Judge – 3, Amravati, for its appropriate consideration. Writ Petition is disposed of. Rule accordingly. If the costs are paid, the parties to appear before District Judge – 3, Amravati, on 9th August 2010 and District Judge – 3, shall endeavour to decide the challenge as early as possible and in any case by 30th October 2010. JUDGE *GS.