Savita Sadi Centre and others v. Bank of Baroda — 1997 DIGILAW 554 (BOM)

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Admit. Heard by consent of the advocates for the parties. 2. By the impugned order, the lower Appellate Court condoned the delay in filing the appeal. The facts in brief are that, the non-applicant had filed a suit for recovery of an amount of Rs. 26,556.05 ps. from the applicant herein. The suit was disposed of by a decree dated 2-5-1987. It is the case of the non-applicant that, on account of the bona fide mistake on the part of the non-applicant's advocate in giving advice to prefer the appeal before the High Court instead of before the District Court, the appeal was originally filed before this Court and consequently there was delay in filing appeal before the lower Appellate Court. The lower Court, on going through the records, has held that, there was a bona fide mistake on the part of the non-applicant's advocate in giving the said advice and placing reliance upon the Judgment of the Apex Court in the case of (Mata Din v. A. Narayanan)1, reported in 1971 Mah.L.J.N.O.C.I and the Judgment of the Orissa High Court in (State v. Man Mohanlal and another)2, reported in A.I.R. 1966 Orissa, 219, has condoned the delay since the non-applicant was prosecuting the proceedings before the wrong forum under bona fide belief and in good faith. 3. The learned advocate for the applicant while assailing the impugned order submitted that, there was no material before the lower Appellate Court to hold that there was a bona fide mistake on the part of the non-applicant's advocate in giving the said advice and there was no deligence shown by the non-applicant in obtaining the certified copy before filing the appeal and this aspect has been totally ignored by the lower Court while condoning the delay and thereby has committed error in exercise of its jurisdiction while passing the impugned order. He placed reliance in the Judgment in the matter of (Mariambi and another v. Hanifabai and another)3, reported in A.I.R. 1967 Madhya Pradesh 107, and in the case of (Keshav Prasad v. State of Rajasthan)4, reported in A.I.R. 1967 Rajasthan 24 and in the case of (Gajjan Singh v. Ram Lok)5, reported in A.I.R. 1978 Punjab Haryana 307. 4. He placed reliance in the Judgment in the matter of (Mariambi and another v. Hanifabai and another)3, reported in A.I.R. 1967 Madhya Pradesh 107, and in the case of (Keshav Prasad v. State of Rajasthan)4, reported in A.I.R. 1967 Rajasthan 24 and in the case of (Gajjan Singh v. Ram Lok)5, reported in A.I.R. 1978 Punjab Haryana 307. 4. Perusal of the records disclose that there is a clear finding in the impugned order to the effect that there was a bona fide mistake on the part of the non-applicant's advocate in giving such advice to file appeal before the High Court instead of District Court. This finding has been arrived at on the basis of analysis of the materials placed before the lower Appellate Court and being the finding of fact which unless is shown to be perverse or arbitrary, cannot be ignored. It is not the case of the applicant that the said finding is arbitrary or perverse, nor can it be so, since the same has been arrived on the basis of the materials placed on record which are sufficient to arrive at such finding. 5. The Judgments relied upon by the learned advocate for the applicant have no application to the case in hand. They were given in the peculiar facts of those cases before the respective High Courts and the same are different from those of the case in hand. In the case in hand, the record discloses that the non-applicant had preferred an appeal before the High Court within a period of 90 days i.e. within the period of limitation prescribed for preferring appeal to the High Court and it was only on the return of the said Memo of Appeal by the High Court for filing the same in the Court of competent jurisdiction that the same was filed before the lower Appellate Court. These facts sufficiently disclose the bona fide on the part of the non-applicant in prosecuting the matter before a wrong forum. Being so, the ratio of the judgment of the Apex Court in the matter of Mata Din, Man Mohanlal (supra), are squarely applicable to the case in hand and the decisions relied upon by the learned advocate for the applicant, are of no assistance. 6. Being so, the ratio of the judgment of the Apex Court in the matter of Mata Din, Man Mohanlal (supra), are squarely applicable to the case in hand and the decisions relied upon by the learned advocate for the applicant, are of no assistance. 6. In any case, the lower Appellate Court has in its discretion, on the analysis of the materials on record, condoned the delay in filing the appeal. It cannot be said that the discretion has not been exercised judiciously, considering the facts and circumstances of the case. 7. Since, the applicant has not disclosed any jurisdictional error on the part of the lower Appellate Court in condoning the delay, I see no reason for interference in the discretionary order passed by the lower appellate Court, wherein the discretion has been judiciously exercised. 8. The Revision Application is bound to fail and the same is accordingly dismissed. However, there shall be no order as to costs. Revision dismissed.