Bombay High Court

NEW MAHESH VILLA CO-OP HOUSING SOCIETY LIMITED AND ORSversusM/S.JAY JAY CONSTRUCTIONS COMPANY AND ORS

Decided: 28 January 2026
Disposal: Disposed Off
Bench: JITENDRA SHANTILAL JAIN

Holding

The court condoned the delay and restored the appeal, subject to payment of a cost of Rs 30,000.

Summary

The applicants, New Mahesh Villa Co‑Op Housing Society Ltd. and others, sought restoration of an appeal (First Appeal No. 1376 of 2013) that had been dismissed by self‑operative order on 24 January 2019 for failure to file the paper‑book within eight weeks. They filed an interim application on 17 May 2025, more than six years after the dismissal, claiming the delay was due to the clerk of their advocate missing the record and the advocate’s resignation, without supporting affidavit. The court noted the lack of documentary evidence, acknowledged contributory negligence by all parties, and held that the applicants should have been vigilant. Despite the long delay, the court condoned it in the interest of justice, ordered the applicants to pay Rs 30,000 to Tata Memorial Cancer Hospital, and restored the appeal subject to that payment. The interim application was thereafter disposed.

Issues considered

Whether a delay of over six years in filing an interim application for restoration of a dismissed appeal can be condoned.
Whether contributory negligence of the parties affects the court's discretion to condone procedural delay.
Whether the imposition of a cost order is appropriate in the context of condoning the delay.

Subjects

restoration of appeal
condonation of delay
procedural default
cost order
civil appellate jurisdiction
contributory negligence

Judgment

2026:BHC-AS:4177
                   Sayyed                                                         36-IA.9962.2025.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
                                  INTERIM APPLICATION NO.9962 OF 2025
                                                   IN
                                      FIRST APPEAL NO.1376 OF 2013
                   New Mahesh Villa Co-Op
                   Housing Society Limited & Ors.         ...Applicants/Appellants
                         Versus
                   M/s. Jay Jay Constructions
                   Company & Ors.                         ...Respondents
                         _____________________________________________________
                   Mr. Rohit Gupta a/w Mr. Abdetaiyeb Q. Motiwala i/by A. S. Bhalekar &
                   A. Q. Motiwala for the Applicants/Appellants.
                   Mr. Shubham Jagtap i/by Dhanuka & Partners for Respondent No.1.
                   Mr. Pradeep M. Patil for Respondent Nos.2 and & 3-MCGM.
                         _____________________________________________________

                                                      CORAM :        JITENDRA JAIN, J.
                                                      DATE       :   28 JANUARY 2026
                   P.C.:
                   1.        This application is filed for restoration of the appeal which
                   was dismissed by self-operative order dated 24 January 2019 for non-
                   filing of paper-book within eight weeks thereof.

                   2.        Interim Application is filed on 17 May 2025. The delay in
                   filing the interim application is of more than six years. The reason states
                   that when the record and proceedings was received by this Court, same
                   was not noticed by the clerk of the advocate and he has resigned. There
                   is no affidavit or any document in support of this particular reason
                   annexed to the present interim application. It is also accepted that there
                   has been some inadvertence error on the part of the advocate and the
                   same advocate has appeared today in this Court and accepted the same.
                   In any case, the applicants should have been vigilant and kept a track of
                   this matter. There has been contributory negligence on the part of all
                   the stakeholders in this matter.



                                                        1 of 2
                               Sayyed                                                     36-IA.9962.2025.doc


                               3.       The applicants state that it is only when the settlement talks
                               were initiated that they found out the status of the appeal and became
                               aware that the appeal has been dismissed.

                               4.       Keeping in mind the above facts, the delay in the interest of
                               justice is condoned, subject to payment of cost of Rs.30,000/- to Tata
                               Memorial Cancer Hospital, Dr. Ernest Borges Road, Parel Mumbai - 400
                               012. The cost should be paid within four weeks from today. Subject to
                               payment of the cost, First Appeal No.1376 of 2013 is restored.

                               5.       Reply of the respondent is taken on record.

                               6.       Interim Application is disposed of.



                                                                              [ JITENDRA JAIN, J. ]




Signed by: Sayyed Saeed Ali
Designation: PA To Honourable Judge
Date: 28/01/2026 18:30:39                                       2 of 2

Continue reading with your account

Checking your session…