Final Order 1

Order Details: Order on Exhibit
Pdf Text: CNR No. MHSCA30011472022
IN THE COURT OF SMALL CAUSES AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
MARJI No. 64 of 2022
IN
Misc. Appeal Stamp No. 317 of 2022
IN
Exh. 44
IN
R.A.D. Suit No.1070 of 2010
1. Smt. Rajani Chandrakant Raje (since deceased)
Through her legal heirs
1a. Shri Kiran Chandrakant Raje
Age: 62, Occupation : Retired
Residing at A-505, Gorai - III
Vaishnavi Co-op. Hsg. Society Ltd.
Plot No. 1, RSC 1 and 2
Gorai No. 3, Borivali (West)
Mumbai - 400091
Address: Residing at A-403
Sai Kiran Co-op. Housing Society
Plot No. 58, RSC 48, Gorai No. 2
Borivali (West), Mumbai - 400091
1b. Smt. Rekha Rajeev Raje
Age: 64, Occupation : Housewife
Residing at 202, Prabhu Ashish Society
L. T. Road, Opp. Pangat Hotel
Borivali (West), Mumbai - 400091
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1c. Smt. Anushree Abhay Chitre
Age: 59, Occupation : Housewife
Residing at A-5, Om Maheshwar Niketan CHS Ltd.
Chandansar Road, Near Standard Chartered Bank
Borivali (West), Mumbai - 400092 : Applicants
VERSUS
Shri Kailash Kamlakar Chogale
Age: Adult, Occupation : Business
Residing at Flat No. 13
Manali Co-op. Hsg. Society Ltd.
Hanuman Cross Road No. 2
Vile Parle (East), Mumbai – 400057 : Respondent
Appearance :
Mr. Akshay A. Deshmukh , learned Advocate for the Applicant
Mr. Jitendra G. Damani , learned Advocate for the Respondent
Coram : Vilas P. Kadam
Additional Chief Judge
And
A.H. Baig
Judge, Court Room No. 41
Date : 05.08.2023
ORDER : (Per Vilas P. Kadam, Additional Chief Judge)
Present MARJI came to be filed for condonation of delay
of 163 days for challenging the order passed below Exh. 44 in RAD
Suit No. 1070 of 2010. It is contention of applicants that, the
application Exh. 44 was allowed and applicants want to challenge
that order.
2. It is further contended that, order is passed on Exh.44 on
29.02.2020, but due to Covid -19 they could not challenge it in Misc.
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Appeal. Further it is contended that, there was delay for filing the
present Misc. Appeal against said order as one of the original plaintiff
Mrs. Rajani Chandrakant Raje expired on 24.06.2022. Further it is
contended the delay is not deliberate one and therefore prayed for
allowing or condoning the delay.
3. Say submitted by the respondent on same application
wherein it is contended that the calculation made by the applicants is
false one. No need to challenge the order. Then also such type of
application came to be filed in order to prolong the matter as the suit
is of the year 2010 and therefore, prayed for rejecting the
application.
4. Heard both side. Both have agreed that, the delay for
filing or challenging the order below Exh.44 is there, but due to
pandemic they could not file. Both have submitted that after
completion of pandemic period immediately the present application
was not filed as there was delay of 163 days for challenging order
below Exh. 44. At the same time, it is required to consider that the
pandemic period was extended till February 2022. In view of
direction of Hon’ble Supreme Court it was extended from time to
time for challenging order of delay. After completion of pandemic
period since March 20022, the applicants were required to file the
present Misc. Appeal, but could not file as it is contended by the
applicants that, one of the original plaintiff namely Mrs. Rajani
Chandrakant Raje expired on 24.06.2022. Thus in view of pandemic
period as well as in view of death of plaintiff No.1 Mrs. Rajani
Chandrakant Raje, definitely there is hurdle for filing this appeal
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within stipulated period. Thus delay is required to be condoned.
5. Both of the advocates have submitted that delay be
condoned subject to costs. Hence, we pass the following order.
ORDER
1. MARJI No. 64 of 2022 is allowed subject to
costs of Rs. 2000/- to other side i.e.
respondents.
2. The applicants are hereby directed to
deposit the costs within 7 days from today.
3. After depositing the costs the office is
hereby directed to scrutinize M. Appeal and
it may be registered as per rules.
I agree,
(A.H. Baig) (Vilas P. Kadam)
Judge Additional Chief Judge
C. R. No. 41 C.R. No. 41
05.08.2023 05.08.2023
/home/pa41/JUDGMENT-CR41/August-23/Marji/64-22-Marji-dt-5-8-23.odt bpk
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