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Bombay High Court

SALIM ABDUL MAJID DHOLE AND ORSversusISMAIL ALLIMIYA SURME AND ORS

Decided
Disposal
Allowed

Holding

A condonation of delay application must not be rejected when the appellants' substantive rights are affected by the decree, and the court must adopt a liberal approach to protect those rights.

Summary

The appellants, Salim Abdul Majid Dhole and others, filed a second appeal challenging the district judge's order rejecting their application for condonation of delay in appealing a decree dated 27 April 2012 in Regular Civil Suit No. 440 of 2009. They claimed title to the suit property under a Development Agreement dated 11 July 2006 and alleged that the original suit was collusive, filed without their participation, and that they only learned of the decree after obtaining the 7/12 extracts. The first appellate court had recognized that the decree would affect the appellants' rights and thus granted them locus standi to appeal. The key legal questions were whether the condonation application could be rejected despite this finding, and whether a liberal approach was required to protect the appellants' substantial rights. The High Court held that the application could not be rejected and that a liberal approach was mandatory, setting aside the district judge’s order and directing the first appellate court to register and hear the appeal on its merits. Consequently, the second appeal was allowed and disposed of without costs.

Issues considered

  • Whether the application for condonation of delay could be rejected despite the finding that the appellants' rights would be affected by the decree in Regular Civil Suit No. 440 of 2009?
  • Whether, in view of settled legal principles, the first appellate court was required to adopt a liberal approach to condonation of delay to protect the appellants' substantial rights?

Subjects

  • condonation of delay
  • locus standi
  • liberal approach
  • civil appeal
  • decree
  • substantive rights
  • civil procedure

Judgment

Neeta Sawant                                                   22-SA-544-2024.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION


                      SECOND APPEAL NO. 544 OF 2024


Salim Abdul Majid Dhole & Ors.                                    ... Appellants
                    : Versus :
Ismail Allimiya Surme & Ors.                                      ...Respondents



Mr. Akash D. Warang, for the Appellants.

Mr. Rohit Sakhadeo, for Respondent No.12-TMC.



                                          CORAM:        SANDEEP V. MARNE, J.
                                           DATED:       24 SEPTEMBER 2026.


P.C.:


1)                This is an Appeal filed against the order dated 21 February
2024 passed by the District Judge-2, Thane rejecting Civil Misc.
Application No. 74 of 2021 filed by the Appellants seeking condonation
of delay in preferring Appeal against judgment and decree dated 27
April 2021 passed in Regular Civil Suit No. 440 of 2009 by the
Learned Joint Civil Judge Senior Division, Thane.


2)                I have heard Mr. Warang, the learned counsel appearing for
the Appellants.           This Court has already formulated following
substantial questions of law by order dated 3 September 2024 :


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Neeta Sawant                                                         22-SA-544-2024.docx


                 (i) Whether the application for condonation of delay could have been
                 rejected inspite of holding that the appellants would be affected in view
                 of the judgment and decree passed in Regular Civil Suit No.440 of
                 2009 ?

                 (ii)Whether in view of the settled legal principles, the First Appellate
                 Court was required to adopt a liberal approach as refusal to condone
                 delay would affect the appellants' substantial rights in view of the decree
                 impugned in the First Appeal ?


3)               Notices were issued of final disposal of the Second Appeal
on the above questions of law to the Respondents.                        Office Report
indicates that Respondent Nos.1 to 3, 4(a) to 4(c), 5, 9, 11 to 13 are
served.        Respondent Nos.6, 7, 8 and 10 are served through paper
publication. However, none has appeared on behalf of the contesting
Respondents.         Mr. Sakhadeo, appears on behalf of Respondent No.12
who is Thane Municipal Corporation and not a contesting party as
such to the present Appeal.


4)               The Appellants were not impleaded as parties to Regular
Civil Suit No. 440/2009. Appellants rely on registered Development
Agreement dated 11 July 2006 by virtue of which they claim title in
respect of the suit property. It is the case of the Appellants that after
execution of registered Development Agreement dated 11 July 2006, the
vendors alongwith their relatives filed collusive suit being Regular Civil
Suit No. 440/2009 for securing decree behind the back of the
Appellants. Since Appellants were not impleaded as parties to the suit,
they did not have any knowledge in respect of the decree dated 27 April
2012.


5)               In their application for condonation of delay, the
Appellants specifically pleaded that they acquired knowledge about the

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Neeta Sawant                                                         22-SA-544-2024.docx


decree only after they took out 7/12 extracts which bore the entry about
decree dated 27 April 2012. Within reasonable time of procuring 7 /12
extracts, the Appellants have lodged the appeal alongwith application
for condonation of delay and leave application.


6)               The Appellate Court has agreed with the Appellants that
they have locus to file the appeal as their rights would be affected by
the judgment and decree passed in Regular Civil Suit No.440 /2009.
This is clear from the following findings recorded by the First Appellate
Court :
               6]        The documents filed on record show that in the year 2006
               Development Agreement in respect of same property was executed in
               favour of the applicants. In view of this it can be said that the applicants
               will be affected by the Judgment and Decree passed in RCS No.440 /2009.
               The applicants therefore, have locus standi to file an appeal.


7)               In my view, once the first Appellate Court recorded a
finding that rights of the Appellants would get affected by decree
passed in Regular Civil Suit No. 440/2009, the First Appellate Court
ought to have been liberal in condoning the delay especially when it is
established that a decree has been obtained behind the back of the
Appellants. In my view, the Appellants pleaded a justifiable cause for
condonation of delay in lodging the Appeal.


8)               In view of the above discussion, the substantial questions
are answered as under :


               Ans.(i) : The application for condonation of delay could not
               have been rejected by the First Appellate Court after holding
               that rights of the Appellants would be affected by the decree
               passed in Regular Civil Suit No. 440/2009.

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                                     Ans.(ii) :    The First Appellate Court ought to have
                                     adopted a liberal approach since refusal to condone the delay
                                     would affect the substantial rights in view of the decree
                                     impugned in the First Appeal.


                      9)               In view of the above answers to the questions formulated, I
                      proceed to allow the Appeal by passing the following order :


                                       (i) Order dated 21 February 2024 passed by the District
                                       Judge-2, Thane in Civil Misc. Application No.74/2021 is set
                                       aside and the Application is made absolute in terms of
                                       prayers made therein.


                                       (ii)The First Appellate Court shall proceed to register the
                                       Appeal and decide the same on merits without being
                                       influenced by any of the observations made in the present
                                       order.


                      10)              With the above directions, the Second Appeal is allowed
                      and disposed of. There shall be no order as to costs.




                                                                         [SANDEEP V. MARNE , J.]
         Digitally
         signed by
         NEETA
NEETA    SHAILESH
SHAILESH SAWANT
SAWANT   Date:
         2026.09.28
         19:07:13
         +0530




                                                           PAGE NO. 4 of 4
                                                       Thursday, 24 September 2026


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