1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.15/2010 CHANDRAKANT GAYAPRASAD SHAHU ..VS..SHAKUNTALA SHANKARLAL SHAHU & OTHERS Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order C ORAM : SMT. VASANTI A NAIK, J. DATED : 7 th JULY, 2010 . Heard Shri Gharote, the learned counsel for the appellant and Shri Sundaram, the learned counsel for the respondents/ By this second appeal, the appellant challenges the order passed by the Principal District Judge Nagpur on 21.11.2009 on an application filed by the appellant for condonation of delay in filing the appeal, against the order dated 4.10.2007 in final decree proceedings. The appellant is one of the original defendants. A suit was instituted by respondent no.1 and 2 for partition and separate possession of the property. It was held by the trial court that the plaintiff had 1/4th share in the property. A preliminary decree was passed on 30.9.1991. The same was challenged by the appellant/ defendant by filing a first appeal. The first appeal was also dismissed. The final decree proceedings were instituted and an order was 2 passed in the final decree proceedings on 4.10.2007. The order passed in the final decree proceedings on 4.10.2007 was challenged by the appellant before the District Judge, Nagpur along with an application for condonation of delay in filing the appeal. In the application for condonation of delay in filing the appeal, it was stated by the applicant that the appeal along with the application for condonation of delay was filed before the District Judge on 4.9.2008, after a delay of 98 days. It was stated in the application that the appellant’s wife was suffering from hepatitis and was under medical treatment from 5.11.2007 to 23.12.2007 and the appellant was required to look after her and take care of her. It is then stated in the application that the appellant was himself suffering from enteric fever and was bedridden for a period from 29.10.2007 to 24.2.2008. In such circumstances, it was the case of the appellant that the delay in filing the appeal be condoned, as the appellant had also preferred a writ petition bearing Writ Petition No. 984/2008 on 26.2.2008 and the same was decided on 14.8.2008. It is then stated in the application that the appeal was preferred on 1.9.2008 and there was a delay of 127 days in filing the application. In prayer clause it was stated that there was delay of 59 days and the same should be condoned. The application was seriously opposed by the 3 original plaintiffs / respondent no.1 & 2. The learned District Judge by an order dated 21.11.2009 rejected the application for condonation of delay with costs. On hearing the learned counsel for the parties and on perusal of the documents annexed to the second appeal, it appears that the appellant had falsely depicted certain facts which did not exist and concealed certain facts which ought to have been brought before the court for explaining the delay in filing the appeal. It is necessary to note that the certified copy of the order dated 4.10.2007, which was sought to be challenged by the First Appeal, was applied for on 25.10.2007. The certified copy was delivered to the appellant on 2.11.2007. It appears that the appellant had filed a writ petition against the order dated 4.10.2007 on 16.1.2008, but had withdrawn the same on 14.8.2008 with liberty to file appropriate proceedings. The appeal was filed before the District Judge along with an application for condonation of delay on 4.9.2008. The delay in filing the appeal is of 334 days which is wrongly stated in application for condonation of delay at one place as 98 days, at second place in paragraph 3 as 127 days and in the prayer clause, it is stated that the delay is of 59 days only. It is necessary to note that some of the facts which are enumerated herein above are not stated in the application for condonation of delay and in fact it is stated in the application for 4 condonation of delay that the wife of the appellant was under medical treatment from 5.11.2007 to 23.12.2007 and the appellant himself was bedridden for the period from 29.12.2007 to 24.2.2008. It is interesting to note that the appellant appears to have filed a writ petition on 16.1.2008 when the appellant was bedridden. The reasons stated in the application for condonation of delay appear to be false. They are falsified by the aforesaid facts which are now stated before this court and are reproduced herein above. The date of preferring the writ petition is incorrectly stated in the application as 26.2.2008, so as to synchronize it with the false statement that the appellant was bedridden for the period from 29.12.2007 to 24.2.2008. From a reading of the application and from a perusal of the other documents on record, it is clear that the appellant has not come to the court with clean hands and has not stated the true and correct facts before the court for seeking condonation of delay in filing the appeal. It is also necessary to note that when the matter was argued before the learned District Judge on the application for condonation of delay, it was conceded by the advocate for the appellant as can be seen from the order of the learned District Judge that there were glaring mistakes in the application and no effective purpose could be served unless the application was withdrawn and fresh 5 application was filed. It is necessary to note that the learned District Judge by taking a liberal view in the matter and on considering the request of the counsel adjourned the matter for granting an opportunity to the appellant to withdraw the application with the glaring mistakes and file a fresh one, but the counsel for the appellant appeared on the next date of hearing to boldly inform the court that the appellant was not interested in withdrawing the application and he had stated that the order in may be passed. The conduct of the appellant does not deserve any sympathy. The learned District Judge rightly rejected the application as the appellant had not satisfactorily explained the delay in filing the appeal against the order dated 4.10.2007. Though the learned District Judge has not recorded that the statement of facts made in the application for condonation of delay appear to be false, this court makes the aforesaid observation on a perusal of the application and on a consideration of the other facts on record. The learned District Judge did not commit any error in rejecting the application for condonation of delay in the facts and circumstances of the case. The judgment reported in (2010) 5 SCC Page 459 would not come to the rescue of the appellant, specially in the facts of the case. Since no substantial question of law arises for 6 consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.