Mr. Edburg Harry Arland And Ors vs Shivsagar Co-Op. Hsg. Soc. Ltd. ...
2023 Latest Caselaw 8560 Bom

2023:BHC-AS:23964
                                                                                   18-wp-8557-2023.doc


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

                                           WRIT PETITION NO.8557 OF 2023

NIKITA
KAILAS
DARADE
Digitally signed
by NIKITA
KAILAS DARADE
                    Edburg Harry Arland and Ors.                     ... Petitioners
Date: 2023.08.23
12:14:01 +0530
                               V/s.
                    Shivsagar Co-op. Hsg. Soc. Ltd. and Anr.         ... Respondents


                    Mr. Sudhir V. Sadavarte for the Petitioner.
                    Mr. Vaibhav R. Gaikwad, a/w Mr. Yash Naik and
                    Atharva R.B. for Respondent.



                                                    CORAM     : AMIT BORKAR, J.

                                                    DATED     : AUGUST 22, 2023
                    P.C.:

1. Petitioners are original plaintiffs who filed Regular Civil Suit No.952 of 2007, seeking declaration and cancellation of conveyance deed. The Trial Court by judgment and decree dated 25th August 2023, directed execution of conveyance deed dated 4th November 2013, to the extent of share of plaintiff and open space. Aggrieved thereby, the defendant society on 26 th July 2016, filed appeal along with the application for condonation of delay. Delay caused was of 340 days. The reason assigned for condonation of delay was that earlier managing committee was not taking affairs of the society diligently. New managing committee was installed by general body on 28 th September 2015. It is only upon communication by plaintiff No.1 in April 2016, that

18-wp-8557-2023.doc

the new managing committee got knowledge of the decree.

2. The Appellate Court by the impugned order, condoned the delay subject to cost of Rs.1,000/-/. It is well settled that the power of superior Court against positive exercise of jurisdiction in the context of condonation of delay is microscopic unless, exercise of discretion by the Lower Court is perverse. Ordinarily, the Superior Court would not interfere with the positive exercise of jurisdiction. It is also well settled that unless the delay is caused with malafide intention ordinarily, the delay subject to proof of sufficient cause deserves to be condoned. The appellate Court in its discretion has accepted the cause shown by the defendant as sufficient cause, there is no perversity in the approach of the District Court. No interference under Article 227 is called out that however, considering the cause shown in the application. Respondent No.1 needs to be directed to pay costs of Rs.10,000/- to petitioners.

3. The writ petition stands disposed of.

4. The Respondent No.1 shall pay cost of Rs.10,000/- to petitioners.

(AMIT BORKAR, J.)