Bombay High Court
Vivek Charandas Khare vs Hashim Salebhai Safiuddin Decd Thr ... on 12 August, 2024
2024:BHC-AS:32552
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2320 OF 2021
Vivek Charandas Khare ....Petitioner
V/S
Hashim Salebhai Safiuddin
deceased through their CA
Sanjay Gaurishankar Sharma & Ors. ....Respondents
_________
Mr. Devang D. Parmar for the Petitioner.
Ms. Uma Sharma i/b Mr. Sachin B. Chowdhari for Respondent No.2.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 12 AUGUST 2024.
P.C.:
1 This Writ Petition is filed challenging order dated 6 February 2021
passed by Appellate Bench of Small Causes Court rejecting Application for
condonation of delay of 543 days in preferring Appeal against the order dated
3 February 2018. By order dated 3 February 2018 the learned Judge of the
Small Causes Court had rejected MARJI Application No.334 of 2015 taken up
by the Petitioner/Defendant for issuance of show-cause notice to Respondents
for commission of alleged forgery and perjury by making false statements on
oath.
2 I have heard Mr. Parmar, the learned counsel appearing for Petitioner
and I have considered the submissions canvassed by him.
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3 The order on MARJI Application No.334 of 2015 came to be passed by
the learned Judge of the Small Causes Court on 3 February 2018 rejecting the
application for issuance of show-cause notice to Respondents for their
prosecution for alleged acts of forgery and perjury for allegedly making false
statements on oath. There was delay of 543 days in preferring Appeal to set up
a challenge to the order dated 3 February 2018. In the Application for
condonation of delay, Petitioner pleaded as under:
"4. This Hon'ble Court has passed the Impugned Orders on 03.02.2018
and rejected my Applications. The Appellant's Advocate was confused with
the question of law for challenging the Order by way of Writ Petition or is
there any other alternative remedy. The Appellant's Advocate had come to
learn that the Appellant has left with the alternative remedy by way of filing
the above Appeal. Hence, the Appellant has come before this Hon'ble Court
by way of filing the above Appeal in the interest of justice.
5. The Respondent and the Opponent are trying to play the game of
words and wanted to escape from the high handed crime of land grabbing and
misusing the provision of Rent Control Act for their own benefits and use this
Hon'ble Court as a weapon to harass the common man and to usurp his
property.
6. It is submitted that there is a delay of 543 days in filing the above
Appeal. The Appellant's Advocate was not sure whether an appeal would lie
against the Impugned Order or a Writ Petition before the Hon'ble High
Court, Bombay. The said confusion took time for the Appellant's Advocate to
finally decide and to prefer the present Appeal in the interest of justice. Thus,
the said delay is neither intentional nor deliberate on the part of the
Appellant. It is submitted that no prejudice would be caused to the
Respondent and the Opponent, if the said Appeal is decided on merits by
condoning the delay, in the above matter in the interest of justice."
4 Thus the confusion in the mind of the learned advocate representing
Petitioner was the only reason cited for seeking condonation of delay of 543
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days. Mr. Parmar would rely upon judgment of Single Judge of this Court in
Bhausaheb and others vs. Laxman Shankar Gaikwad 1, in support of his
contention that a litigant should not suffer for the mistake of advocate.
However in Bhausaheb and others (supra), delay was only of 110 days. In the
present case there is inordinate delay of more than one and half years in filing
the Appeal. The justification pleaded for condonation of inordinate delay does
not inspire confidence. The alleged confusion in the mind of the advocate
about the exact remedy to be adopted to challenge the order dated 3 February
2018 cannot be accepted for condoning inordinate delay of 543 days. Though
though the Advocate believed that the correct remedy was to file a Writ
Petition before this Court, it is also a matter of fact that no such Writ Petition
was filed during the period of 543 days. In my view therefore no sufficient
cause was shown for condonation of inordinate delay of 543 days. The
Appellate Bench has rightly rejected the application for condonation of delay.
I do not find any patent error in the said order. Writ Petition is accordingly
rejected.
(SANDEEP V. MARNE, J.)
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.08.14
14:33:44
+0530
1 MANU/MH/1186/2011
