Shrymanti @ Pratibha Khemu @ Prakash Pagi v. Rajesh Gopi Faldessai And 2 ORS

16-MCA-131-2023.DOC Suchitra

IN THE HIGH COURT OF BOMBAY AT GOA

MISC. CIVIL APPLICATION NO.131/2023 IN CIVIL REVISION APPLICATION NO.1681/2022 (F) SHRYMANTI @ PRATIBHA KHEMU @ PRAKASH PAGI ... APPLICANT

Versus

RAJESH GOPI FALDESSAI AND 2 ORS.

... RESPONDENTS Ms A. Fernandes, Advocate for the Applicant.

Ms T. Menezes, Advocate for Respondent No.2.

CORAM:

M. S. SONAK, J.

DATED:

19th JANUARY 2024 P.C.:

1.

Heard Ms A. Fernandes for the applicant and Ms T. Menezes for respondent no.2.

2.

Ms Fernandes states that delay is of 97 days and the same was because an appeal was instituted against the impugned order based on an incorrect legal advise. Soon after it was realized that no appeal was maintainable, the same was withdrawn and this revision was instituted. She submits that the appellants were bonafide pursuing an incorrect remedy and there are no malafides involved. She states that the appellant has not gained anything by instituting the revision beyond the period of limitation. 3.

Ms Menezes vehemently opposed the application for condonation of delay. She submits that the delay will be more 19th JANUARY 2024

16-MCA-131-2023.DOC than 97 days for which no explanation is offered. She also submits that the law is very clear about non-availability of any appeal against an order made in Section 6 Specific Relief Act Suit. Terefore, she submits that the delay should not be condoned. 4.

I have considered the rival contentions. In my judgment, the delay is not inordinate. Besides, the same is well explained. 5.

Tere is no dispute that the appellant did prefer an appeal against the impugned order made in a Suit instituted under Section 6 of the Specific Relief Act. Upon realizing that such an appeal was not maintainable and the correct remedy was that of instituting a revision application, the appeal was dismissed as non-maintainable and this revision was instituted. Tis means that the appellant was diligent and not indolent. 6.

Tere does appear to be a bonafide mistake based upon the legal advise which the appellant received. Te cause title states that the appellant is a fisherwoman and therefore, it was not for her to decide whether the correct remedy was that of an appeal or revision.

7.

Considering the above factors, a case is made out for condoning the delay. Te delay is accordingly condoned. 8.

Misc. Civil Application No.131/2023 is disposed of. M. S. SONAK, J.

SUCHITRA NANDAN SINGBAL Date: 2024.01.22 15:13:20 +05'30'

SUCHITRA NANDAN SINGBAL 19th JANUARY 2024