1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.89 OF 2009 (SUSHIM TATYABA OHOL AND OTHERS V/S SANDEEP MAHENDRALAL SHAH AND ORS) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr.Sandeep S.Deshmukh, Adv., for the petitioner. R.Nos. 1, 2, 6 to 9 served. R.Nos. 3 to 5 deleted. ... CORAM: K.U.CHANDIWAL, J. DATE:9-3-2010 P.C.:- 1. Heard. Inspite of service and accommodating respondents at least for four dates, pathetic approach of absence in the present civil revision application is projected. 2. The controversy revolves to application seeking to condone delay of 1506 days in preferring appeal being MCA No.106/2008, being aggrieved by the judgment and decree in RCS No.516/1993, decided on 3rd April, 2004. 3. The record ( page No.32) 2 illustrated that the appellants in the stay application sought condonation and, consequantly, were warranted to lead evidence. They did not prosecute the matter as the Court observed, no evidence is adduced even as per the direction dt.18.12.2008 and it was adjourned. Consequently, on 13th Jan.,2009, learned District Judge (II), Ahmednagar, dismissed the application, however, on the same evening, application below Exh.26 was moved by the appellant in the said appeal, seeking restoration of the application. The learned Judge directed, "keep for arguments on 14.1.2009" and the learned Judge passed order on 14.1.2009, restoring the application No.106/2008 to its original position without affording any opportunity to the respondents in the said appeal to be heard, as is evident in paragraph no.1 of the very order. This has certainly caused prejudice to the respondents in the appeal ( present revisional applicant). Ignoring even this 3 exercise, the fact remains, the learned District Judge did not assess the evidence in its proper perspective. 4. Normally, procedure is to condone delay, however, if the delay is not sufficiently, properly explained, it need not be condoned as a matter of course. The exorbitant consumption of time of 1506 days also adds fuel to the agony of the present applicant. At page no.28 in the application, it is stated in para no.4, the applicants ( respondents in the present civil revision application) were stopped in getting proper response in respect of said RCS No.516/1993, since last 25th April, 2008. Therefore, the applicant had been to Ahmednagar, in first week of May. The applicant thereafter made inquiry of the progress in the said R.C.S. and learnt that it was dismissed on 3rd April, 2004. 5. These averments are indeed reproduced in the affidavit in 4 chief of the respondent no.2 Manish Subhash Shah at page no.52. In paragraph no.3, he states that the Advocate from time to time was informing that suit is pending and it is not yet decided. The Advocate used to give different dates or reasons for non decision of the matter, viz. Court was on leave, Court has not framed additional issues, the Court is transferred, the suit has been kept for side list, etc. It is informed, the deponent Manish had deep faith and belief in the Advocate and, consequently, did not make independent inquiry about the matter with the Advocate. In paragraph No.4, of the said affidavit, identical contentions, as were made earlier, are reflected. Surprising part is, in the cross examination, he accepts that he was present when the matter was argued finally and he did not bother to ascertain, after the arguments, whether finally date of decision was given or not. He did not ascertain as to what is the fate of the matter. 5 This remissness on the part of deponent has gone unexplained. 6. The deponent or the plaintiff did not endeavour to get any evidence of the Advocate who participated on their behalf to substantiate contentions as coined by the said plaintiff ( appellant in application No.106/2008). Non examination of the Advocate to substantiate contention has turned to be fatal to the contentions raised by the said appellant. The learned District Judge though considered all the aspects, however, accepted that the appellant in the said Miscellaneous Application trusted their Advocate and the Advocate did not acquaint them with the true facts. Though there was no basis for the same, the acceptance of evidence of applicant no.2 and rejection of evidence of the present revisional applicant is not at all justifiably explained by the learned Judge. Though the learned Judge observed, duration of delay is insignificant, the 6 Court has to take into account if there is acceptable or pardonable explanation or otherwise, the learned Judge certainly erred in accepting the evidence of said applicant no.2 which, as stated earlier, was demonstrating remissness associated with casual approach. It, in the situation, could not have been countenanced against the law though equities favour, to some extent, to the said applicant. 7. In the result, the order of the learned District Judge, II, Ahmednagar, dt.16.7.2009, accepting the petition and condoning delay in preferring the appeal is set aside. The result is, the appeal pending before the learned District Judge (II), Ahmednagar, will not be registered. No costs. (K.U.CHANDIWAL) JUDGE agp/89-09cra