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Bombay High Court

MADHURI RAMAKANT DESALEversusRAMAKANT PANDLIK DESALE

Disposal
DISPOSED OFF

Holding

A minor default in depositing a nominal cost does not justify dismissal of an appeal; the order condoning the delay is to be enforced subject to payment of the cost, allowing the appeal to proceed on its merits.

Summary

The petitioner challenged a 27 November 2014 order that dismissed his appeal against a matrimonial decree because he failed to deposit a nominal cost of Rs.500 after the appellate court had conditionally condoned a 90‑day delay in filing the appeal. The appeal had originally been delayed, and the petitioner sought condonation of that delay, which the appellate court granted subject to payment of the cost. The petitioner argued that the failure to pay was inadvertent and that technical defaults should not defeat substantive justice. The respondent contended that the petitioner had no satisfactory explanation for the initial delay and willfully failed to pay, thereby forfeiting any relief. The High Court held that a minor financial default should not bar the appellant from having the matter heard on its merits and ordered the cost to be paid within three weeks. Accordingly, the impugned order was set aside, the delay was condoned, and the parties were directed to appear before the appellate court for a merits hearing.

Issues considered

  • Whether the appellate court's dismissal of the appeal for non‑payment of a nominal cost can be set aside.
  • Whether a minor default in depositing the cost justifies condoning the delay and allowing the appeal to be heard on merits.
  • Whether substantial justice outweighs technical defaults in matrimonial appeals.

Subjects

  • Matrimonial Law
  • Court of Appeals
  • Condonation of Delay
  • Cost Payment
  • Technical Default
  • Substantial Justice

Judgment

2026:BHC-AUG:41466
                                                      1                           62-WP-537-15.odt



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                                       WRIT PETITION NO. 537 OF 2015

                                    MADHURI RAMAKANT DESALE
                                                VERSUS
                                     RAMAKANT PANDLIK DESALE
                                                  ...
                             Advocate for Petitioner : Mr. Amol S. Sawant
                            Advocate for Respondent : Mr. Mukul S. Kulkarni
                                                  ...

                                               CORAM :          SACHIN S. DESHMUKH, J.
                                               DATE        :    02-09-2026
                PER COURT:-

                1.    The petitioner has approached this Court challenging the

                order dated 27.11.2014 below Exhibit-1 in Miscellaneous Civil

                Appeal No. 77 of 2009. By the order under challenge, the learned

                appellate      court     rejected    the       petitioner's   application     for

                condonation of delay, dismissing the appeal for non-compliance

                with a cost.


                2.    The matrimonial dispute between the parties started from a

                Hindu Marriage Petition for restitution of conjugal rights filed by

                the respondent, which was allowed by the trial court. Aggrieved by

                the judgment and order/decree, the petitioner preferred an appeal.

                Since there was a delay of 90 days in filing the appeal, the

                petitioner moved an application for condonation of delay. The

                appellate court inclined to condone the delay, subject to cost of

                Rs.500/-     payable      to   the    respondent.        However,      due     to
                                    2                         62-WP-537-15.odt



inadvertence, the petitioner failed to deposit the cost within the

stipulated period, leading to the rejection of the application and

the statutory appeal.


3.    The learned counsel for the petitioner submitted that the

failure to deposit the cost was neither deliberate nor intentional.

He argued that the appellate court adopted a hyper-technical

approach. It is also submitted that substantial justice must prevail

over technical defaults and that an opportunity must be granted to

contest the matter on merits.


4.    Per contra, the learned counsel for the respondent strongly

opposed the petition. He contended that the petitioner failed to

offer a satisfactory explanation for the initial 90-day delay. He

further   argued   that   despite       the   appellate   court   exercised

jurisdiction condoning the delay subject to nominal costs, the

petitioner willfully failed to deposit the amount, thereby forfeiting

any entitlement to equitable relief.


5.    Having heard both sides and perused the record, it is evident

that the petitioner’s appeal against the matrimonial decree has

been dismissed purely on a technical default rather than an

adjudication on the merits. In matrimonial disputes, the courts

should ideally lean towards a substantive adjudication to settle the

marital status and rights of the parties conclusively.
                                           3                         62-WP-537-15.odt



6.          While the petitioner’s negligence in depositing the nominal

cost of Rs.500/- cannot be completely overlooked, depriving a

party of an appellate remedy on a minor financial default defeats

the ends of justice. To subserve the cause of substantial justice, an

opportunity needs to be extended to the petitioner to have the

appeal heard on its merits, subject to reasonable terms.


7.          Consequently, the petition is allowed with the following

directions:

      (I)        The order dated 27.11.2014 below Exhibit-1 in M.C.A.

                 No. 77 of 2009 is quashed and set aside.

      (ii)       The delay of 90 days in filing the appeal stands

                 condoned, subject to the petitioner depositing the

                 original cost amount of Rs.500/- (if not already

                 deposited) within a period of three weeks from today.

      (iii)      The parties   are directed to appear before the

                 concerned appellate court on 29.09.2026.

      (v)        The   appellate   court       is   requested   to   make     an

                 endeavour to decide the matter expeditiously.


8.            The writ petition stands disposed of in the above terms.




                                           [SACHIN S. DESHMUKH, J.]



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