IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR C.A. NO. 3070/2005 (Keshao Mukund Rangari thr. L.Rs. & Ors. vs. Tatyaji Parasram Kakekar thr. L.Rs. and others..) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : S.R.DONGAONKAR, J DATED : 1 st SEPTEMBER, 2008. Heard Shri S.D.Malke, Advocate, for the applicant and Shri V.N.Morande, Advocate, for contesting respondent. This is an application for condonation of delay in preferring an application for restoration of appeal, which was dismissed on 28.9.1999. The delay is stated to be of about 5 years and six months. It is the contention of the learned counsel for the applicant that the second appeal filed by the original appellant i.e. father of the present applicant no.1 was dismissed on 28.9.1999. It is also his submission that at that time the counsel appearing for the original appellant had expired and therefore, he could not appear. It is also submitted that the original appellant died on 3.5.2001 and later on, when mutation proceedings were started by the respondent, the present applicant came to know about the dismissal of the appeal on 31.3.2005 and this application was filed immediately thereafter on 11.4.2005. While opposing this application, learned counsel for the contesting respondent pointing out the order passed by this Court dated 28.9.1999, has submitted that the appellant was noticed as the learned counsel appearing for the appellant was expired. He having received the notice for engaging another counsel, has not taking any steps, nor appeared in person and therefore, the appeal was dismissed. As such, according to him, there is no sufficient reason to condone the delay. It is further pointed out by him that the applicant no.1, the son of original appellant, is aged about 43 years. He was residing with his father and managing the business of his father. The subject matter of the suit is regarding the premises where the business is being conducted and therefore, the present applicant no.1 must have knowledge of the proceeding and in fact he must be conducting proceedings on behalf of his father and in these circumstances there is no satisfactory explanation for delay. As such, the application moved by the present applicant cannot be allowed. It is also contended by him that the litigation is pending since 1974. The respondent has succeeded in both the courts below and when there is unexplained delay, that too for unreasonable period for 5 ½ years, the same should not be condoned. I have considered all the aspects. The order of this Court dated 28.9.1999 shows that the appellant was in the notice of the death of his counsel. In fact, the notice was sent to him for engaging another counsel and still he did not take steps and the matter came to be dismissed. The facts pointed out by the respondent also show that the applicant must be residing with the original appellant, he being his father and he was also carrying the business along with him. As such, it is not possible to say that the present applicants were not in the knowledge of the proceedings. In these circumstances, it is difficult to say that the applicants have made out a case for condonation of delay of such a large period of 5 ½ years. As such, the application cannot be allowed. The same is dismissed with no order as to costs. JUDGE Rvjalit