1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.824 OF 2009 Devji S/o Velji Gavit Appellant V/s Bhamtya S/o Isarya Gavit and others. Respondents ------------------------------------------------------ Mr.Vivek Dhage, Advocate for appellants. Mr.K.C. Sant, Advocate for respondent nos.1 and 2. ------------------------------------------------------ (CORAM : V.R.KINGAONKAR,J.) DATE : 26th November, 2009. PER COURT : 1. Challenge in this appeal is to the judgment rendered by the First Appellate Court in an appeal, which came to be dismissed due to dismissal of the delay condonation application (Misc.Civil Application.No.16/2006). 2. By consent taken up for final hearing in view of earlier order dated 12th November, 2009. Heard Counsel. 3. The appellant is the original defendant no.1. The respondent nos.1 and 2 are the original plaintiffs and the respondent no.3 is the original defendant no.2. The respondent nos.1 and 2 filed the suit (R.C.S. No. 2 21/2003) for declaration of ownership, recovery of possession and perpetual injunction in respect of the agricultural land bearing Gat No.3/1, admeasuring 2 Acres 20 Gunthas. The suit was decreed by the Trial Court. The appellant filed appeal against the decree along with an application for condonation of delay. There was delay of 85 days in filing the appeal before the learned District Judge. The learned District Judge held that the appellant failed to explain the delay. It was held that there was no sufficient cause shown by the appellant. According to the appellant, he was suffering from illness. He had produced the medical certificate. The First Appellate Court held that there was no sufficient proof to infer that the appellant was not communicated by his Advocate about necessity of filing appeal. Consequently, the application for delay condonation was dismissed. 4. The only substantial question of law involved in second appeal is as follows :- (i) Whether in the facts and circumstances of the present case, the First Appellate Court took perverse and erroneous view while 3 rejecting the delay condonation application, therefore, the impugned dismissal of the appeal needs interference ? 5. It is to be noted that the appellant is poor, rustic and member of triable community. He does not know the legal requirements. It is but natural that without proper legal advise, he could not have decided to file the appeal before the First Appellate Court. It is not the case that the reason of his illness was totally disbelieved by the First Appellate Court. The First Appellate Court held that the appellant himself had applied for copy of the judgment and therefore knowledge of the impugned judgment of the Trial Court could be attributed to him. The question is not whether he had knowledge of the impugned judgment. The real question is whether he was advised by the Advocate to prefer the appeal and that too within stipulated period of limitation. The approach of the First Appellate Court appears to be rather dogmatic. 6. It is well settled that in the matter of delay condonation, liberal view is required to be taken it is more so when a party suffers from 4 disability on the ground of poverty and illiteracy. Consequently, I find that the First Appellate Court overlooked the well settled norms to be adopted while considering the delay condonation application. The appellant was not to gain anything by committing delay. The delay appears to be unintentional. Under these circumstances, the impugned order is unsustainable. 7. In the result, the impugned order rendered by the First Appellate Court is set aside by allowing the instant appeal. The delay caused in filing appeal before the First Appellate Court stands condoned. The learned District Judge is directed to register the appeal of the appellant and decide the same on its own merits within a period of nine months from the date of this order. No order as to costs. The status-quo position to be maintained for six weeks in order to facilitate the appellant to seek interim relief before the First Appellate Court. (V.R.KINGAONKAR) JUDGE GAS/sa824.09