JUDGMENT :

1. Heard Mr. J. Ramaiya, learned counsel for the petitioner, and Mr. B. Sardessai learned counsel for the respondents.

2. Rule. The rule is made returnable forthwith at the request and with the consent of the learned counsel for the parties.

3. The challenge in this petition is to the judgment and order dated 23.08.2021 in Misc. Civil Appeal No.22/2021 by which the appeal Court has condoned the delay of 139 days in applying for setting aside ex-parte decree.

4. At the very outset, Mr. Ramaiya pointed out that ground No. XV in the memo of appeal instituted by the respondents herein making certain allegations against the trial Judge. Ground XV in the appeal memo reads as follows:-

“The Dismissal of the application of condonation by the Trial Court is not only without proper appreciation but highly indicative of a bias and a prejudiced view especially considering the admission by the learned trial Court and thereby denying natural justice to the appellant.”

5. It is most unfortunate for such ground should be raised in the memo of appeal making baseless and irresponsible allegations against the trial Judge. This Court was inclined to consider action but Mr. Sardessai, learned counsel on behalf of the respondents, based on instructions, has unconditionally tendered an apology and offered to withdraw ground No. XV and the baseless allegations therein. Besides this is a case where Mr. Sardessai again, based on the instructions has offered to pay costs of Rs.25,000/- instead of Rs.5000/- that has been awarded by the appeal Court. Having regard to both these circumstances, leave is granted to the respondents to withdraw the ground No. XV from the appeal memo. This ground shall therefore stand expunged from the records.

6. Mr. Ramaiya, learned counsel for the petitioner submits that no sufficient cause was shown in this case as was quite correctly analyzed and observed by the learned Trial Judge. Mr. Ramaiya invited my attention to the observations at para 13 of the Trial Court's order in which the trial Court, has held that the reason for the delay could not be regarded as genuine.

7. The appeal Court, in this case, has taken into account the findings recorded by the trial Court but the appeal Court has held that the respondents were under the bonafide perception that the matter will be pursued on the same dates. There was an error in recording the proper date in the diary. This error was on account of shifting of the office and the concerned file being kept on the file rack where disposed of matters were normally placed and finally, there were some issues due to one of the respondents mother's ailment for which she had to be admitted to Tata Memorial Hospital at Mumbai. The appeal Court has also noted that the Advocate for the respondents had also assumed responsibility for certain faults in the prosecution of the matter. Having regard to all these facts, the appeal Court positively exercised discretion and condoned the delay of 139 days.

8. According to me, this is not a case of any perversity or unreasonable exercise of discretion on the part of the appeal Court. Merely because some other view is possible or because the view taken by the learned trial Judge was also plausible view cannot be a ground to exercise extraordinary jurisdiction and interfere with the positive exercise of discretion by the appeal Court. In this case, there was nothing on record to indicate that the delay on the part of the respondents was deliberate or as a part of some dilatory strategy.

9. In N. Balakrishnan vs M. Krishnamurthy, 1998 (7) SCC 123 the Hon'ble Supreme Court has held that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. Further, the Hon'ble Supreme Court has held that