... 1 ...

IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL

CIVIL

CIVIL APPELLATE JURISDICTION

APPELLATE JURISDICTION

APPELLATE JURISDICTION

WRIT

WRIT

WRIT PETITION NO.2436 OF 2007

PETITION NO.2436 OF 2007

PETITION NO.2436 OF 2007

Odette Mariana Lobo & Ors.

...Petitioners

Versus

Erach Nasarvanji Damania

(deceased through legal heirs & Rep:)

Zarin E. Damania & Ors.

...Respondents

Ms Odette Mariana Lobo Petitioner-in-person present.

Shri Uday Warunjikar for the Respondent Nos.1 to 4.

CORAM

CORAM

CORAM : ABHAY S.OKA, J.

: ABHAY S.OKA, J.

: ABHAY S.OKA, J.

DATED

DATED

DATED : APRIL 21, 2007.

: APRIL 21, 2007.

: APRIL 21, 2007.

P.C.:

P.C.:

P.C.:

1.

I have heard the first Petitioner appearing in

person for herself and on behalf of the other

Petitioners. The challenge in this Petition under

Article 227 of the Constitution of India is to the order

dated 20th February, 2007 passed by the learned District

Judge, Daman by which an Application for condonation of

delay made by the Respondents was allowed subject to

payment of costs of Rs.1,000/-. Delay was of about 66

days in preferring the Appeal.

2.

The suit filed by the Respondents original

Plaintiffs was dismissed and the counter claim filed by

the Petitioners was allowed by the Civil Court by

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Judgment and Decree dated 28th March, 2003. An

application was made by the Respondents original

Plaintiffs for obtaining certified copies of the

Judgment and Decree on 31st March, 2003. The certified

copies were ready on 21st April, 2003. It is the case

of the Respondents original Plaintiffs that from 05th

May, 2003 to 08th June, 2003 the Court was on summer

vacation. On 09th June, 2003 in view of the amended

provisions of Rule 9 of Order XLI of the Code of Civil

Procedure, 1908, the Appeal against the Judgment and

Decree was presented before the same Court which had

passed the decree. The Appeal was returned on 31st

July, 2003 and was filed in the District Court on the

same day.

3.

The submission of the first Petitioner appearing

in person is that the original Plaintiffs had engaged

services of a very seasoned Advocate who ought to have

been aware of the decision of the Apex Court in the case

of Salem Advocate Bar Association T.N. Vs. Union of

Salem Advocate Bar Association T.N. Vs. Union of

Salem Advocate Bar Association T.N. Vs. Union of

India

India

India [(2003) 1 Supreme Court Cases, Page 49]

[(2003) 1 Supreme Court Cases, Page 49]

[(2003) 1 Supreme Court Cases, Page 49] and

therefore, it cannot be said that the error committed of

filing the Appeal before the trial Court was a bonafide

error. She submitted that the original Plaintiffs have

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filed a large number of frivolous proceedings and even

the original Plaintiffs were fully aware of the

interpretation given by the Apex Court to Rule 9 of

Order XLI as the Judgment of the Apex Court was

delivered on 25th October, 2002 and was reported in the

month of January of the year 2003. She submitted that

there was no sufficient cause for condonation of delay.

She pointed out that the observations made by the

learned District Judge in paragraph No.6 of the impugned

order are not only contradictory but are bad in law and

therefore, the order passed by the District Court of

condoning the delay deserves to be set aside.

3.

I have carefully considered the submissions. As

stated earlier, from the dates which are mentioned above

it is apparent that the period available under the law

of limitation for prefering the Appeal expired in summer

vacation which was from 05th May, 2003 to 08th June,

2003. Thus,