Kailas Sudama Kini vs Mrs. Vijaya Kailas Kini
2021 Latest Caselaw 8756 Bom

                                                                             16. IA 755-20.doc

DDR
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                        INTERIM APPLICATION NO. 755 OF 2020
                                        IN
                        SECOND APPEAL ST.NO. 28432 OF 2019

       KAILAS SUDAM KINI                             ..APPLICANT.
             VS.
       VIJAYA KAILAS KINI                         ..RESPONDENT
                                  ---------------
       Mr. Sandeep Maurya i/b. Khalid Naseem Khan for applicant.

       Mr. Rahul More for respondent.
                                  ---------------

                                     CORAM :    M.S.KARNIK, J.

DATE : JULY 3, 2021 (VIA V.C.)

P.C.

This is an application for condonation of delay of 1 year and

275 days by the applicant in preferring the Appeal against the

impugned judgment and orders of the First Appellate Court.

2. It is pointed out that the applicant under a mistaken

apprehension had fled the Writ Petition challenging the legality

and validity of the impugned judgment and orders passed by the

Appellate Court. On 27th September, 2019, on an objection being

raised, the applicant realised that the Writ Petition is not

maintainable. He sought liberty to withdraw the matter and fle

fresh proceedings challenging the impugned judgment and orders.

Accordingly, the present Appeal came to be fled.

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3. Shri More, learned counsel appearing for the respondent/wife

opposed the application for condonation of delay. He submits that

stand of the applicant - husband is non bonafde.

4. I have gone through the application for condonation of delay.

From the averments made in the application, I fnd that the

applicant was prosecuting the remedy of a Writ Petition challenging

the impugned order instead of fling a Second Appeal. There is

nothing on record to doubt the contention of the applicant that he

was bonafde pursuing the remedy of a Writ Petition. In this view of

the matter, I am satisfed with the explanation ofered by the

applicant is reasonable and sufcient cause has been shown to

condone the delay in fling the Appeal.

5. For the reasons stated in the application, the delay is

condoned.

6. I am informed by Shri More, learned counsel appearing for

the respondent - wife that the applicant is in arrears to the tune of

Rs.4 lakhs and odd. Appropriate proceedings have been taken out

before the Trial Court. The said application obviously will proceed

on its own merits.

7. Without prejudice to the pending application before the Trial

Court, in order to show his bonafdes, learned counsel for the

applicant - husband says that the applicant will pay to the

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respondent a sum of Rs.1,50,000/- on or before 10th September,

2021. Statement accepted.

8. It is open for the Trial Court to proceed with the application

for enforcement of the order for payment of maintenance.

9. The application is disposed of.

(M.S.KARNIK, J.)

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