1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 9057 OF 2009 IN REJECTED CASE NO. 457 OF 2005 IN SECOND APPEAL STAMP NO. 35410 OF 2003 Manikrao S/o Bhaurao Vaidya Died through L.R.s Ashok S/o Manikrao Vaidya and others .. Applicants Versus 1. Bhausaheb S/o Saluba Vaidya .. Respondents Mrs. H. H. Waghmare, Advocate for the Applicants. CORAM : N. D. DESHPANDE, J. DATE : 05TH NOVEMBER, 2009. ORAL ORDER : 1. Heard Mrs. Waghmare, the learned counsel for the appellants/applicants. The present civil application is for condonation of delay under Section 5 of the Limitation Act 1963, praying for extension of period of limitation of 35 days for preferring the second appeal in this Court against the judgment and decree passed by IInd Additional District Judge, Jalna in Regular Civil Appeal No. 85/1999 which is impugned before this Court. 2 Admittedly, there is delay of 35 days. The applicants are original defendants in the suit bearing Regular Civil Suit No. 238/1995, which was also decided and decreed against them by judgment and decree of perpetual injunction passed by the IInd Joint Civil Judge Junior Division, Jalna. Admittedly, the plaintiff is occupying their ancestral house as a tenant, as he was also cultivating the agricultural land of the defendants. 2. The impugned judgment and decree was of perpetual injunction, which was upheld and operating against the applicants and no substantive rights have been decided so far. It is true that, merits of the case cannot be considered while considering the application for condonation of delay. What is seen to be the sufficient cause if any which prevented the applicants to file their appeal in the prescribed time which is ninety days for second appeal in the High Court. 3. Perused the application for condonation of delay. The only ground stated in para four of the application is that because of family problems and due to some unavoiding circumstances, they could not approach their advocate and give instructions for filing appeal till 30th October, 2003 and their advocate had lost his father and, therefore, there was further delay to file the appeal. 4. There was already delay of 22 days when they approached their advocate who had lost her father. The said delay is not properly explained. Only ground and the reason stated is family 3 problem and unavoiding circumstances. The grounds are vague and cannot be considered as satisfactory explanation. The applicants were defending the suit and also prosecuting first appeal and there are concurrent findings recorded against them, because plaintiff was found to be in possession of the suit house. As such, applicants should have been vigilant and having failed to explain the delay, their application deserves to be dismissed. The civil application stands dismissed and disposed of accordingly. 5. Needless, to state that, the parties are at liberty to file their substantive suit for appropriate relief in accordance with law. [ N. D. DESHPANDE, J.] bsb/Nov. 09