1 wp1726.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1726 of 2010 Mr. Chindhu Fakira Satale & ors. ... Petitioners v/s. Mr. Sadashiv Kashinath Jadhav & ors. ... Respondents Mr. G.R. Agarwal for the petitioners. Mr. Nitin Mulye for respondent no. 1-A. CORAM:- B.R. GAVAI, J DATED :- APRIL 08, 2011. P.C. Rule. Rule, made returnable forthwith. 2. Heard. By consent taken up for final hearing. 3. By way of present petition, the petitioner challenges the order dated 19th August, 2008 vide which the learned District Judge Nashik has rejected Civil Application No. 219/2006 filed by the present petitioners for condonation of delay in filing an appeal. 2 wp1726.10.sxw 4. The Respondents 1-2 had filed RCS No. 55/2001 for declaration and mesne profit. The said suit came to be decreed exparte against the present petitioners. Being aggrieved thereby the present petitioners filed an appeal before the learned District Court. The same was allowed and learned Appellate Court had directed the trial Court to decide the suit afresh. A particular date was given for appearance of the parties. However, on the said date, the petitioners did not appear and the suit was decided within the stipulated period again exparte, as against the petitioners. Being aggrieved thereby, an appeal has been filed. The Appeal is delayed by 15 days. Hence, an application for condonation of delay is filed. The same is rejected. Hence, the present petition. 5. Shri Agarawal, the learned Counsel appearing on behalf of the petitioner submits that since the petitioners are rustic villagers, a leniency is required to be shown to them in view of the Judgment of the Apex Court in the case of Hanmavva & ors. Vs. Pettiya & ors. reported in 2008(5) ALL MR 1007. He further submits that previous proceedings are not to be taken so seriously and relied on the Judgment of the Apex Court in the case of Narain Prasad Aggarwal(D) by LRs v/s. State of M.P. reported in AIR 3 wp1726.10.sxw 2007 SC 2349. 6. Shri Mulye, the learned Counsel vehemently opposes the petition. He submits that this is not the first time but the second time when on account of negligence on the part of petitioners, the respondents are dragged into litigation. He, therefore, submits that the petition is liable to be dismissed. 7. Nodoubt that the petitioners have been negligent in defending the suit not only once but on two occasions. They have permitted the suit to be decreed exparte against them. They have also permitted the limitation to file an appeal to lapse. However, taking into consideration the fact that applicants are tribal villagers and further it would be more appropriate that their dispute is decided on merits rather than foreclosing the doors of justice on technical ground, I am inclined to allow the petition. 8. Insofar as prejudice that is caused to the respondent-plaintiff is concerned, the same can be compensated by saddling cost. The impugned order is, therefore, quashed and set aside. The application filed by the present petitioner for condonation of delay in filing the appeal is allowed. 4 wp1726.10.sxw The learned Appellate Court is directed to decide the appeal within a period of three months from today. 9. However, this shall be subject to the cost which are quantified at Rs. 10,000/-. The cost be deposited before the Appellate Court within a period of four weeks from today. On deposit of cost, the respondent-plaintiff would be entitled to withdraw the same. The deposit of cost in the aforesaid period is condition precedent for allowing the petition. On failure to deposit the cost within the period prescribed, the petition shall stand dismissed without further reference to the Court. (B.R. GAVAI, J)