( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 516 OF 2009 WITH CIVIL APPLICATION NO.7731 OF 2009 Parubai Tukaram Jarhad, Age: 74 years, Occ: Household., R/o. Nimlak, Taluka Nagar, District Ahmednagar. Present residing at Jeur, Tq. Nagar, Dist. Amednagar. .. Appellant Versus Draupadabai Tukaram Jarhad, Age: 62 years, Occ: Agri., R/o. Nimblak, Taluka Nagar, District Ahmednagar & Ors. .. Respondents ... Mr. Amol K. Gawali, Advocate for the appellant. Mr. C.K. Shinde, Advocate for respondent Nos.1,2 & 4. ... CORAM : P.R. BORKAR,J. DATED : 08.04.2010 P.C. :- Heard Mr. Amol K. Gawali, Advocate for the appellant and Mr. C.K. Shinde, Advocate for respondent Nos.1,2 and 4. 2. Second Appeal is admitted on the following question of ( 2 ) law. "Whether the view taken by the First Appellate Court in rejecting Misc. Civil Application No. 87/2007 for condonation of delay unreasonable and as such, deserves interference in the interest of justice?' 3. With the consent of the parties, this appeal is being heard for final disposal at the stage of admission. Brief facts giving rise to this second appeal are as follows : Present appellant claimed herself to be wife of the deceased Tukaram and she filed R.C.S. No.8/1995 in the Court of the Joint Civil Judge, S.D. Ahmednagar for declaration of her title and for injunction in respect of the properties of deceased Tukaram. According to her, respondent No. 2 was concubine of Tukaram and the respondents have no concern with the properties of Tukaram. 4. The suit came to be decreed by the Joint Civil Judge, S.D. Ahmednagar on 31-07-1998. As against the same, appeal was filed in the District Court, Ahmednagar and the matter ( 3 ) was remanded and the parties were directed to appear in the trial Court on 12-01-2006. However, the present appellant- plaintiff did not appear. The respondents appeared and suit came to be dismissed as no evidence was led by the appellant- plaintiff and she did not offer herself for cross examination. It is the case of the plaintiff-appellant that she learnt about the remand and dismissal of the suit on 27-02-2007 when she happened to go at Ahmednagar and informed by the Advocate. Advocate told her that suit was dismissed on 07-06-2006 and thereafter, she obtained the certified copies and filed appeal with application for condonation of delay, which was registered as Misc. Civil (Delay) Application No.87/2007. Said application was dismissed on 07-01-2009 by the District Judge-3 Ahmednagar and therefore, this second appeal. 5. Learned Advocate of the appellant pointed out to me the contents of the affidavit filed with delay condonation application, which were not challenged. It is stated in the said affidavit Exhibit-28 that the appellant-plaintiff was not aware of the remand order passed by the District Court and as such, she did not appear in the trial Court nor offer ( 4 ) for cross examination. On 27-02-2007 when she had been to Ahmednagar and made inquiry with her Advocate, she learnt that the suit was decided on 07-06-2006 and then application for certified copies was given. According to her, Advocate has not informed her about the decision of the appeal and the remand of the suit for fresh trial and therefore, she did not appear. 6. Learned Advocate of the respondents argued that litigant should be vigilant and it is also his duty to inquire with the Advocate. Learned Advocate of the respondents relied upon the observations made by this Court in Para-8 in Second Appeal No.754 of 2009 decided on 12-11-2009, therein it is observed that " it is well settled that law will not help the litigant who does not care for his rights. The principle " vigilant ibus, et non dormentibus, jura sub veniunt " is directed in the present circumstances." Ordinarily, this principle is applicable in cases like the present case. The appellant-plaintiff is 74 years of age, residing at Jeur, Taluka Nagar District Ahmednagar. She succeeded in the trial Court and the appeal was filed by the respondents in the District Court. Obviously, she was not expected to appear in ( 5 ) person in the appeal when she has engaged Advocate. 7. Considering the circumstances, in my opinion, this appeal deserves to be allowed and opportunity should be given to the plaintiff-appellant. Second Appeal is allowed. The order passed by the District Judge-3 Ahmednagar rejecting M.C.A. No.87/2007 on 07-01-2009 is hereby set aside. The said application is allowed. Delay is condoned. District Court, Ahmednagar is directed to register the appeal. The appellant to pay costs of Rs.1000/- (Rs. One thousand only) as costs of this appeal to the Advocate of the respondents. Costs be paid within period of four weeks from today. Parties agree to appear before the District Court, Ahmednagar on 26-04-2010. Registry to inform this order to the District Court, Ahmednagar prior to that date. 8. In view of the final disposal of the Appeal, Civil Application No. 7731 of 2009 does not survive and is disposed of accordingly. [P.R. BORKAR,J.] sut/APR10/sa516.09