1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.20/2009 Syed Mastan Syed SUltan ..vs.. Smt. Saleha Khatten Yaqub Ali & another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anthony, advocate for petitioner Shri Vyawahare, advocate for respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 05, 2009. Heard the learned counsel for the parties. Perused the impugned order dated 7.11.2008 passed by the Ad-hoc District Judge -8, Nagpur rejecting the application filed by the petitioner for condonation of delay of 667 days in filing the appeal. \ The respondent had filed Special Civil Suit against the petitioner bearing Special Civil Suit no.424/1998 which was decreed by order dated 15.4.2006. It is the case of th petitioner that the petitioner had engaged one Shri D.A.K. Kazi to appear and prosecute the matter on behalf of the petitioner. It is stated by the petitioner in the application for condonation of 2 delay, that his counsel had told him that when ever the petitioner’s presence would be required, it would be so informed. It is the case of the petitioner that though he approached his counsel in connection with his case, time and again, his counsel did not inform him about the dates. In the month of December, according to the petitioner he had received a notice of execution proceeding and on receipt of the same, he had applied for certified copy of the judgment and decree dated 15.4.2006, on 18.12.2007. The certified copies were received on 29.12.2007 and thereafter the application was filed on 4.1.2008. The petitioner prayed for condonation of delay of about 18 months and 27 days in filing the appeal as his counsel did not inform him about the date of hearing and also about passing of the judgment and decree dated 15.4.2006. The respondents denied the case of the petitioner as stated in the application for codonation of delay and denied that the petitioner was not aware of the dates of the hearing or was not aware of the decree, till he received the notice in the execution proceedings. It was however, admitted by the respondents that the counsel engaged by the petitioner was residing in the same locality and was belonging to the same community of the petitioner. The other statement of facts in the application, however were denied by the respondent. The respondent sought for the dismissal of the application. 3 The trial court, on an appreciation of the application and the reply filed thereto along with the submissions canvassed on behalf of the parties, rejected the application with costs by the order dated 7.11.2008. The order passed by the trial court on 7.11.2008 appears to be just and proper. In this case, the petitioner did not tender any evidence to prove the statement of facts in the application for condonation of delay, though they were specifically denied by the respondents. The petitioner had also not produced the affidavit of the advocate who was engaged by the petitioner in the trial court, though serious allegations are made against him. The trial court further noted that the petitioner and the lawyer were residing in the same locality and also belonged to the same community and in such circumstances, it was difficult to believe that the counsel did not inform the petitioner about the dates of hearing, though petitioner visited him every now and then. In fact it is stated in the application by the petitioner that after receiving the notice in the execution proceedings, he visited the office of the lawyer, who informed the petitioner that the suit had been decreed against him. This clearly shows that the petitioner had not approached his lawyer from 15.4.2006, till December, 2007 when he allegedly received the notice in the execution proceeding. There is nothing wrong in the approach of the trial court in rejecting the application for condonation of delay specially when the 4 facts stated in the application for condonation of delay were controverted by the respondents and nothing was produced on record to substantiate the facts. The trial court rightly held that it was necessary for the petitioner to have tendered some evidence and also produce the affidavit of the counsel who was engaged by the petitioner to conduct the case. Since there is no jurisdictional error in the impugned order 7.11.2008, the writ petition fails and is dismissed with no orders as to costs. JUDGE smp.