Bombay High CourtWP/5997/2014dispossed offdismiss for default

Mohd. Usman S/O Mohd. Hanif And Others v. Mohd. Subhan Mohd. Sujat (Since Dead Through Lrs) Mohd. Salman Mohd. Subhan And Others

2016-06-14Hon'Ble Shri Justice Z.A. Haq2 pages

1 wp5997.14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR WRIT PETITION NO.5997/2014 Mohd. Usman s/o Mohd. Hanif and others ..Versus..

Mohd. Subhan Mohd. Sujat through L.Rs. and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anand Deshpande, Advocate for the petitioners. Shri Sagar Katkar Advocate h/f Shri N.R. Saboo, Advocate for the respondent Nos.1(a) to 1(e).

CORAM : Z.A. HAQ, J.

DATE : 14.6.2016 The petitioners have challenged the order passed by the trial Court rejecting the application praying for condonation of delay. As the delay is not condoned, the application filed by the petitioners under Order 9 Rule 9 of the Code of Civil Procedure stood rejected. Shri C.A. Babrekar, Advocate for the respondent Nos.2(a) to 2(e) has raised preliminary objection to the tenability of the petition on the ground that the impugned order is appeallable under Order 43 Rule 1(c) of the Code of Civil Procedure. In support of the submission reliance is placed on the judgment given in the case of Shyam Sunder Sarma V/s. Pannalal Jaiswal and others reported in 2005(1) Mh.L.J.340. In view of the objection raised on behalf of the respondent Nos.2(a) to 2(e), the learned Advocate for the

2 wp5997.14 petitioners seeks permission to withdraw the petition with liberty to file the appeal. The petition is disposed accordingly. The learned Advocate for the petitioners prays that the District Court may be directed to consider sympathetically the issue about delay in filing the appeal as it has occasioned because of prosecution of the petition before this Court. It goes without saying that if proper explanation is given, it will have to be considered by the District Court.

JUDGE Tambaskar.