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Bombay High Court

ALLAUDDIN KADIR KARDEKAR AND ORSversusHAJIMAYA ISMAIL KARDEKAR

Decided
Disposal
Disposed Off

Holding

The court held that the applicants failed to establish a reasonable cause, so condonation of delay was not granted and the second appeal was dismissed.

Summary

The applicants filed an interim application seeking condonation of a 440‑day delay in filing a second appeal. They claimed financial difficulties, loss of documents due to an advocate’s office renovation, and a change of counsel as reasons for the delay. The court examined these explanations and found them factually inconsistent and insufficient, noting that the certified copy of the judgment was already available and the appeal was filed much later despite earlier affirmation. The judge held that the delay was inordinate and the applicants had not shown a reasonable cause. Consequently, the interim application for condonation was dismissed, and the second appeal was also dismissed.

Issues considered

  • Whether the 440‑day delay in filing the second appeal can be condoned.
  • Whether the explanations provided by the applicants constitute a reasonable cause for the delay.

Subjects

  • condonation of delay
  • second appeal
  • civil procedure
  • liberal approach
  • negligence

Judgment

Neeta Sawant                                                    5-IA-8697-2024.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION


                  INTERIM APPLICATION NO. 8697 OF 2024
                                         IN
                   SECOND APPEAL (ST.) NO. 9336 OF 2024


Allauddin Kadir Kardekar & Ors.                                 ...Applicants/
                                                                 Appellants
                    : Versus :
Hajimaya Ismail Kardekar                                         ...Respondent



Mr. Balasaheb G. Ligade, for the Applicants.

Mr. Sachin Daswadikar, for the Respondent.



                                           CORAM:        SANDEEP V. MARNE, J.
                                            DATED:       30 SEPTEMBER 2026.


P.C.:


1)                The Interim Application seeks condonation of delay of 440
days in filing the Second Appeal.


2)                I have heard Mr. Ligade, the learned counsel appearing for
the Applicants/Appellants and Mr. Daswadikar, for the Respondent and
have considered the submissions canvassed by them.



                                      PAGE NO. 1 of 3
                                 Wednesday, 30 September 2026
Neeta Sawant                                                        5-IA-8697-2024.docx


3)               For seeking condonation of delay of 440 days, the
Applicants have pleaded following justification in paras-3 to 5 of the
application :


               3. The Applicants state that Applicants applied for the certified copy
               of the impugned Judgment and Decree on 10.01.2023 and the same
               was ready and delivered on 12.01.2023.

               4. The Applicants state that the Applicants were in financial problems
               and due to which they were not able to engage an advocate to file the
               Second Appeal or even to seek a consultation regarding the same.
               Thereafter in January 2023 the Applicants approached Mrs. Shivani
               Samel thereby appointing her to file the present Second Appeal
               however, in the end of the April the office of the said Advocate went
               under renovation and due to which the papers of the present case
               were misplaced and it took some time for the Applicants to construct
               another brief for the Advocate.

               5. Applicants submit that undersigned advocate immediacy prepared
               the present both Interim Applications and even affirmed on
               18.10.2023 itself, however for formulating the question of law in the
               Second Appeal sufficient all the papers were not with the undersigned
               advocate. Therefore again delay caused in filing present Second
               Appeal.



4)               Thus, the pleaded justification is that the earlier advocate
was approached by the Applicants in January 2023 but on account of
renovation work in her office, papers were misplaced and it took some
time for the Applicants to reconstruct the papers for filing Appeal.
However, it appears that the papers are not reconstructed in reality and
the very same Certified Copy which was secured by the Applicants on
12 January 2023 is ultimately filed alognwith the Appeal. Therefore, the
reason pleaded in para-4 of the application does not appear to be
factually correct.


                                       PAGE NO. 2 of 3
                                  Wednesday, 30 September 2026
Neeta Sawant                                                 5-IA-8697-2024.docx


5)             The Applicants have further       pleaded in para-5 of the
application that they changed the advocate and the new advocate
drafted the Interim Application and that the same was affirmed on 18
October 2023. It does appear that the present application has been
affirmed on 18 October 2023.          However, the same has been filed
alongwith the Memo of Appeal on 27 March 2023. Thus, even after
affirmation application, the Applicants took more than 5 months in
filing the same. There is no justification for this delay.


6)             Considering the above position, in my view, the Applicants
have failed to plead and establish a reasonable cause for condonation of
delay in filing Appeal. No doubt, the Court needs to adopt a reasonable
and liberal approach in considering the question of condonation of
delay. However, in the present case, the delay is inordinately long i.e.
440 days.      Such inordinate delay ought to have been justified by
pleading proper explanation.       On the other hand, the explanation
pleaded in the application shows a complete casual and negligent
approach on the part of the Applicants. I am therefore not inclined to
condone the delay in filing the Appeal.        The Interim Application is
accordingly dismissed.      Consequently, the Second Appeal is also
dismissed.


                                                [SANDEEP V. MARNE , J.]




                                  PAGE NO. 3 of 3
                             Wednesday, 30 September 2026


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