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 : PAGE NO. 1 of 4 Thursday, 24 September 2026 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 PAGE NO. 2 of 4 Thursday, 24 September 2026 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. / PAGE NO. 3 of 4 Thursday, 24 September 2026 Neeta Sawant 22-SA-544-2024.docx 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.] PAGE NO. 4 of 4 Thursday, 24 September 2026 NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2026.09.28 19:07:13 +0530