Mr. Andrew Ignatius vs Mr. Anthony Derek Rebello
2021 Latest Caselaw 14604 Bom

                                                           13-IA3523-19INFAST30555-19.DOC

                                                                                    Santosh
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANTOSH
SUBHASH
KULKARNI                               CIVIL APPELLATE JURISDICTION
Digitally signed by
SANTOSH
SUBHASH
KULKARNI
Date: 2021.10.07
                                  INTERIM APPLICATION NO. 3523 OF 2019
18:17:04 +0530
                                                   IN
                                   FIRST APPEAL (ST) NO. 30555 OF 2019

                      Mr. Andrew Ignatius                                   ...Applicant/
                                                                                Appellant
                                          Versus
                      Anthony Derek Rebello                               ...Respondents


                      Mr. Santosh Vishwakarma, for the Applicant/Appellant.
                      Mr. Kunal Bhange, a/w Abhijit Patil & Yash Joglekar, for
                           Respondent no.1

                                                  CORAM:      N. J. JAMADAR, J.

                                                  DATED :     6th OCTOBER, 2021
                      PC:-

1. This application is preferred to condone the delay of 447

days in filing appeal against the judgment and decree in LC Suit

No.331/2015, dated 25th July, 2018, passed by the learned

Judge, City Civil and Sessions Court, Greater Bombay.

2. By the said decree, the predecessor in title of the appellant

was ordered to handover the peaceful and vacant possession of

the flat situated on the ground floor, Joseph Mansion, College

Lane, beside Portuguese Church, Dadar (West), Mumbai, to the

plaintiff within a period of three months thereof.

3. In the application, it is averred that the predecessor in title

of the applicant was not aware of the proceedings before the

13-IA3523-19INFAST30555-19.DOC

trial Court and on account of no contest on behalf of the

defendant, the suit came to be decreed. The applicant has a

very good case on merits. If the delay is not condoned, the

applicant would suffer an irreparable loss.

4. The application is resisted on behalf of the respondent -

original plaintiff by filing Affidavit-in-reply. The locus of the

applicant to assail the decree is questioned. In any event,

according to the respondent, there is no sufficient cause to

condone the delay.

5. I have heard Mr. Vishwakarma, the learned Counsel for

the applicant and Mr. Bhange, the learned Counsel for the

respondent - plaintiff. Perused the material on record.

6. Evidently, the suit proceeded without written statement of

the original defendant. The claim of the applicant that the

applicant was not aware of the passing of the decree, if viewed

through the aforesaid prism, cannot be said to be unreasonable.

There does not seem any deliberate inaction or want of bonafide.

It is trite that the Courts lean in favour of the condonation of

delay so as to advance the cause of substantive justice. The

application for condonation of delay thus receives a liberal

consideration.

7. In the case at hand, for the reasons assigned in the

application and the attendant circumstances, especially the fact

13-IA3523-19INFAST30555-19.DOC

that the decree came to be passed for no contest on behalf of the

defendant, it would be expedient in the interest of justice to

condone the delay, so as to provide an opportunity to the

applicant to agitate the issue on merits.

8. Hence, I am inclined to allow the application. Thus, the

following order:

:Order:

(i) The application stands allowed in terms of prayer

clause (a) subject to payment of costs of Rs.5,000/-

by the applicant to the respondent, within two weeks

from today.

(ii) Appeal be registered.

[N. J. JAMADAR, J.]