1 S.A. 502.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 502 OF 2009 Namdeo S/o Kishan Sakhare .... APPELLANT V E R S U S Sow. Dwarkabai W/o Jija Sakhare & Oths. .... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. D.J.Choudhari, Advocate for the appellant. Mr. G.K.Thigle, Advocate for Resp. No. 1 to 3. -------------------------------------------------------------------------------------------------------- CORAM : S.V.GANGAPURWALA, J. DATE : 08/12/2010 ORAL ORDER : 1. This is defendant no. 8’s Second Appeal. 2. The present respondent had filed Suit for partition and separate possession. The said Suit came to be decreed. The defendant preferred Appeal before the District Court. There was delay of 159 days in filing said Appeal. As such, the defendant filed an application for condonation of delay along with Appeal. The lower appellate Court rejected the said application for condonation of delay. The defendant has assailed the said order in the present Second Appeal. 2 S.A. 502.2009 3. The learned counsel for the appellant submits that the appellant was not aware of the Judgment and decree passed by the trial Court. He got the knowledge of the said Judgment and decree in August, 2008 when the notice of execution was served upon him. Thereafter he collected the necessary copies and filed Appeal on 24/10/2008. The learned counsel submits that the delay caused was not intentional one but as he was not aware of the Judgment and decree, the delay was caused. The learned counsel further submits that the appellant was not to gain by causing delay. 4. Per contra, Mr. Thigle, learned counsel for the respondent submits that the appellant was negligent. The reasons stated do not come within the ambit and purview of sufficient cause. According to the learned counsel, the respondents are put to hardship. 5. In light of the above, following substantial question of law arises : (i) Whether the grounds stated in the condonation of delay application would come within the realm of “ sufficient cause ” ? 6. Admit. 7. With the consent of the learned counsels, taken up for final hearing. 8. With the assistance of the learned counsel, I have gone through the 3 S.A. 502.2009 Judgment passed by the Court below. 9. The appellant was not aware of the Judgment and decree passed by the trial Court. The appellant got the knowledge of the Judgment and decree only when he received the notice of execution. The record shows that the present defendant had not participated in the proceedings and the Advocate also did not remain present. After he got the knowledge, he applied for the certified copy. The time was lost in the same and as per the advise of his Advocate, he had collected the papers and thereafter the Appeal was filed. 10. The dispute involves the rights of the parties in an immovable property. It is a trite law that when technical considerations and cause for substantial justice are pitted against each other, the cause for substantial justice should be sub-served. 11. The appellant is not required to explain each and every day’s delay. When the appellant is facing decree for partition and separate possession, naturally he is not going to gain anything by causing delay. 12. In light of the above, I am inclined to allow the Appeal, but because of the delay caused, the respondent/original plaintiff is also put to hardship. For that he requires to be compensated. 4 S.A. 502.2009 13. In the result, the Appeal is allowed. The impugned order is quashed and set aside. The lower appellate Court shall register the Appeal, if otherwise it complies with all formalities. The present appellant and original plaintiffs are represented by their respective counsel. The present appellant and original plaintiff shall appear before the District Court on 23/12/2010. The appellant shall take steps regarding service to the other respondents in the Appeal before the District Court. The appellant shall pay costs of Rs. 1,000/- ( Rupees One Thousand only ) to each plaintiff i.e. total Rs. 4,000/- ( Rupees Four Thousands only ) on or before 23/12/2010. The lower appellate Court shall thereafter decide the Appeal within the period of six months. The plaintiff had filed application for maintenance in the present Second Appeal. However, as the Appeal itself is disposed off, the same is not considered. However, the plaintiff may file such application before the District Court. The lower appellate Court shall also decide the applications filed by the plaintiffs regarding maintenance on their own merits. 14. In view of disposal of Second Appeal, Civil Application does not survive and is disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 502.2009