1 wp4504.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4504 OF 2011 Shaikh Gafoor s/o Babaminya Deceased through his LRs. Tamijabee w/o Shaikh Gafoor, Age: 70 years, Occ: Household, R/o. Ranjani, Tq. Ghansawangi, Dist. Jalna and others. ...PETITIONERS VERSUS Nathuba s/o Raoji Mathure, Deceased through his LRs. Raosaheb s/o Nathuba Mathure, Age: 46 yrs, Occ: Business, R/o. Babultara, Tq. Partur, Dist. Jalna and others. ...RESPONDENTS ... Mr. Ravindra M. Deshmukh, Advocate for petitioners. Mr. D.R. Mundhe, Advocate holding for Mr. J.C. Badve, for respondent Nos.1 and 3. ... CORAM: S.S. SHINDE, J. DATE : 20TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the 2 wp4504.11 petitioners. 2. The Counsel for the petitioners submits that, the application for condonation of delay in filing the restoration of the appeal came to be rejected, on the ground that the petitioner has not explained day today delay. The Counsel for the petitioner would submit that, the petitioner is suffering from Cancer. He went for medical check up at Jalna on 07-09-2001, at that time, he got knowledge that the matter is dismissed for default for want of steps on 30-01-2001. The Counsel would submit that, medical certificate was brought on record, however, the lower appellate Court rejected the said application, hence the writ petition. 3. I have given due consideration to the submissions of the Counsel for the petitioners. Perused the impugned order and in particular para-7. In para-7 the lower appellate Court has observed that, it is bounden duty of the 3 wp4504.11 applicant to explain the delay of each and every date. Mere submission of the applicant that his Advocate has not communicated the dates in the concerned matter does not mean that the delay is properly explained. 4. In my considered opinion, the view taken by the lower appellate Court that delay of each and every date is required to be explained is hyper technical view when the medical certificate was produced on record and the petitioner has brought to the notice of the lower appellate Court that, the petitioner is suffering from Cancer, the lower appellate Court should have taken liberal view in the matter and thereby should have allowed the application for filing the Misc. Petition No. 102 of 2001. 5. In that view of the matter, impugned order is set aside. Civil Misc. Petition No. 102 of 2001 is allowed. Delay stands condoned. Additional District Judge, Jalna to proceed with 4 wp4504.11 the hearing of the Civil Misc. Application No. 102 of 2001 which is filed by the petitioner for restoration of the application. 6. Writ Petition is allowed to above extent and stands disposed of. [S.S. SHINDE, J.] sut/DEC11