1 wp 6366.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6366 OF 2011 Devidas S/o Sandu Khandarkar, Age : 49 Years, Occu. : Pensioner & Agril., R/o Laxminarayanpura, Jalna. .. .. Petitioner Versus 1. Murlidhar Ramnarayan Chechani, Age : 80 Years, Occu. : Agril., R/o at present Laxminarayan Oil Mill, In front Ganpati Netra Rugnalaya, Near Amit Hotel, Jalna. 2. Asaram Khanduji Satpute, Age : 80 Years, Occu. : Agril., R/o Shelgaon, Tq. Badnapur, Dist. Jalna. 3. Pandit Khanduji Satpute, Age : 80 Years, Occu. : Agril., R/o Shelgaon, Tq. Badnapur, Dist. Jalna. 4. Jagannath S/o Khanduji Satpute, Age : 80 Years, Occu. : Agril., R/o Shelgaon, Tq. Badnapur, Dist. Jalna. 2 wp 6366.11 5. Kundlik S/o Khanduji Satpute, Age : 80 Years, Occu. : Agril., R/o Shelgaon, Tq. Badnapur, Dist. Jalna. 6. Khandu S/o Devrao Satpute, (Dead) 6-i Radhabai Khandu Satpute (Dead) All L.R.s' already on record. 6-ii Subhdrabai W/o Bhanudas Dehade, Age : 52 Years, Occu. : Household, R/o Roshangaon, Tq. Badnapur, Dist. Jalna. 6-iii Awantikabai W/o Fakirba Bansode, Age : 47 Years, Occu. : Household, R/o Warud Kazi Post Chikalthana, Tq. & Dist. Aurangabad. .. .. Respondents Shri S. D. Hiwrekar, Advocate for the Petitioner Shri R. S. Dhamangaonkar, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2011. ORAL JUDGMENT : . Notice was issued to all the respondents. Shri Dhamangaonkar, the learned counsel appears for the respondent No. 1. None appears for other respondents. 3 wp 6366.11 2. Rule. Rule returnable forthwith. 3. The present petitioner had instituted R.C.S. No. 210/1987 for declaration that the sale deed executed in the year 1968 is not binding on him and for relief of possession. The matter was fixed for evidence. On the said date the plaintiff remained absent, as such the Trial Court vide order dated 21 st August, 2008 dismissed the suit for default. 4. The petitioner thereafter moved an application for restoration along with an application for condonation of delay. The Trial Court vide order dated 15.06.2011 rejected the application for condonation of delay. Aggrieved thereby the present petition is filed. 5. Shri Hiwrekar, the learned counsel for the petitioner submits that the petitioner could not remain present and adduce the evidence on said date, as the petitioner was ailing and was down with jaundice. After he recovered from his illness, the petitioner met his advocate and asked him about the case and at that time he came to know about the dismissal of the suit, thereafter, immediately the petition was filed for restoration. 4 wp 6366.11 The Court should have considered the application for condonation of delay liberally. The learned counsel contends that the suit is in respect of the rights involved in an immovable property and the petitioner deserves to be given an opportunity to contest the same. 6. Shri Dhamangaonkar, the learned counsel for the respondent No. 1 vehemently opposes the application/petition and submits that the petitioner is guilty of lapses. For long time the petitioner did not appear in the proceedings and conduct the matter. The Court was justified in dismissing the suit for default. No explanation has been given for non filing of the restoration application earlier. Even the reasons stated that the petitioner was done with jaundice is false. The certificate is not proved, no witness is examined. 7. I am only concerned with an application for condonation of delay. It appears that the petitioner has filed on record the medical certificate issued by the doctor. There is nothing to disbelieve the said certificate. It is a trite law that when technical consideration and cause for substantial justice are pitted against each other, the cause for substantial justice shall 5 wp 6366.11 be sub-served. A liberal approach is required to be taken in such cases, more particularly when it deals with the rights of the parties in an immovable property. The reasons have been given by the petitioner for the delay i. e. the petitioner was ailing and was down with jaundice, some time is required to recover from that. 8. In the light of above, I deem it appropriate to quash and set aside the impugned order. At the same time the petitioner also deserves to be mulct with costs. In the result, the impugned order is quashed and set aside on the condition that the petitioner pays cost of Rs. 5,000/- (Rs. Five thousands only) to the respondent No. 1 herein within a period of five (5) weeks from today. The cost may be either directly paid to the respondent No. 1 or deposited in the Trial Court. If the cost is deposited as above, then the Trial Court shall register the application for restoration, if it otherwise complies all other legal requirements. Rule is accordingly made absolute in above terms, however, with no order as to costs of present petition. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11