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.]
rrd
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