ca262.09.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Application No. 262/2009 in First Appeal St. No. 1082/2009 Digambar Mahadeo Sathone & ors. ..vs.. Dashrath Govindrao Samarit Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. Tiwari, Advocate for applicants Mr. Bhattad, Advocate for respondent. Coram: R. K. Deshpande, J. Date : February 5, 2010 1. This is an application for condonation of delay caused in filing the appeal. 2. Heard learned counsel for the parties. The trial Court, in Special Civil Suit No. 796/2006 passed a decree on 03.03.2008 granting specific performance of contract in favour of the plaintiff who is non applicant herein. The period of limitation expired on 03.06.2008. As soon as defendants came to know about the decision of the suit, they have filed an application for obtaining certified copy of the judgment and decree on 23.06.2008. Certified copy was delivered on 18.07.2008. Thereafter, Regular Civil Appeal was filed before the District Court, Nagpur on 04.08.2008. On 12.01.2009, the learned District judge passed order returning the appeal for presentation of it before this Court. Accordingly on 13.01.2009, the instant appeal is ca262.09.odt 2 filed. An averment is made in the application that one P. B. Bhagat, Advocate was engaged by applicants/defendants to conduct the matter and he never informed the applicants regarding progress of the matter. When the applicants came to know about the decision of the Special Civil Suit, they approached another counsel Mr. N. N. Motghare who took inspection of the record and thereafter the appeal was filed before the District Court, which was within the period of limitation. 3. Mr. Bhattad, learned counsel for the non applicant, has strongly opposed the application for condonation of delay on the ground that Mr. Bhagat Advocate was never engaged by the defendants in the trial Court. He has filed certified copy of Vakalatnama and has urged that the signature, which purported to have been made by Mr. Bhagat has in fact not been made by him. Mr. Bhagat has filed an affidavit on record, which is dated 26.11.2009. He has urged that it was Vakanatnama of Mr. N. N. Motghare which was placed on record and there is no explanation given in respect of the matter in which the proceedings are conducted before the trial Court. 4. Without going into the question whether the defendants had engaged Mr. P. B. Bhagat, Advocate or had engaged Mr. N. N. Motghare Advocate, to conduct Special Civil Suit No. 796/2006, on their behalf, the instant application can be decided. Ii tis not disputed ca262.09.odt 3 that earlier appeal Regular Civil Appeal was filed before the District Court at Nagpur on 20.07.2008 after obtaining the certified copy of the judgment and decree on 18.07.2008. Certified copy was applied for on 23.06.2008. The appellate Court returned the appeal on 12.01.2009. This appeal was filed on 13.01.2009. 5. In view of this, it cannot be said that there is lack of bonafides on the part of the applicants. After going through the contents of the application and without going into aspect of engagement of counsel, I am satisfied that sufficient cause is made out for condonation of delay. Hence, the application is allowed. The delay caused in filing the present appeal is condoned, however, subject to payment of costs of Rs. 2,000/- to be paid by applicants to non applicant. The application stands disposed of accordingly. J UDGE kahale