1 WP 2917/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2917 OF 2011 Annasaheb Kallappa Upadhye .. Petitioner V/s Anant Tatya Savant & Ors. .. Respondents Ms. Tanmayi Gadre i/b Mr. Nitin P. Deshpande for the petitioner. Mr. Nagesh Y. Chavan for respondent nos.1 and 2. CORAM : D.G. KARNIK, J. DATE : 8TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Chavan waives service for respondent nos.1 and 2. Service of Rule on respondent no.3 is dispensed with since he was a co-defendant along with the petitioner and would not be adversely affected by the order proposed to be passed in this petition. 3. Heard counsel for the appearing parties. 4. This petition is directed against the judgment and order 2 WP 2917/2011 dated 7th January 2011 passed by the learned District Judge-3, Sangli, rejecting the application of the petitioner for condonation of delay in filing of an appeal. 5. The respondent no.1 filed a suit bearing Regular Civil Suit No. 320 of 1998 in the Court of Civil Judge, Junior Division, Sangli, impleading therein the present petitioner as defendant no.3. In the said suit, an exparte decree was passed on 29th August 2007. The petitioner thereafter filed an appeal against the decision in the District Court on 3rd May 2008 along with an application for condonation of delay in filing the appeal. By the impugned order dated 7th January 2011, the said application was dismissed. That order is impugned in the present petition. 6. Learned counsel for the petitioner submitted that the petitioner was not aware of the exparte decree and therefore he could not file the appeal. Only when the petitioner received the notice from the office of the Talathi on 29th March 2008 that he made inquiries and applied for a certified copy of the judgment and decree on 4th April 2008 which was ready on 22nd April 2008. After consulting his advocate, the petitioner filed an appeal on 3rd May 2008 along with an application for condonation of delay. 3 WP 2917/2011 7. Learned counsel for the respondent submitted that the contention of the petitioner that he was not aware of the decision in the suit is incorrect. In fact, the petitioner is an usual litigant and he is party to several proceedings pending in the Court, some instituted by him and some instituted against him. The respondents have annexed to his affidavit in reply copies of roznama in respect of Special Civil Suit No. 356 of 1993, Special Civil Suit No. 293 of 1998, Regular Civil Suit No. 437 of 2007, Special Civil Suit No. 503 of 1997 and Criminal Case No. 717 of 2005. Counsel for the respondents submitted that in all the aforesaid cases the present petitioner was a defendant and had been attending the Court as shown in the roznama. By filing an affidavit in rejoinder, the petitioner has explained that he was only one of the several defendants in the suits aforementioned. Entries in the roznama about the plaintiff and the defendant being present were in respect of marking presence of some of the plaintiffs and some of the defendants in the suit. Presence of all the parties has not been marked in any of the roznama and he was not present in the Court on relevant dates. Despite an opportunity being given to the respondents to file an affidavit in sur-rejoinder about the explanation offered by the petitioner, the respondents have not filed any affidavit. Therefore, merely on the basis of entries in roznama contained 4 WP 2917/2011 in other civil suits, it cannot be assumed that the petitioner was present on the dates mentioned in the roznama. Even if it is assumed that the petitioner was present on one or more dates mentioned in the roznama of the aforesaid matters, that is not a proof of the fact that the petitioner was aware of the decision in question rendered in Suit No. 320 of 1998. Same is the case in respect of the presence of the petitioner on one day, i.e. 8th October 2007, marked in the roznama of Criminal Case No. 717 of 2005. Merely because the petitioner was present in the criminal case on 8th October 2007, it cannot be assumed that the petitioner was aware about the decision passed in Civil Suit No. 320 of 1998. 8. Learned counsel for the respondents then submitted that the case pleaded in the application for condonation of delay and the evidence adduced in support thereof were contradictory to each other. In the application for condonation of delay, the petitioner pleaded that he was suffering from hypertension. The doctor who examined the petitioner, however, did not say anything about the hypertension, but stated about the enteric fever which the petitioner suffered in April 2008. Hypertension is a long term disease. It does not necessarily prevent a person from doing his day to day activities, whereas enteric fever when 5 WP 2917/2011 severe may prevent a person even from moving out of the house during the period of illness. Whether the petitioner was suffering from hypertension or not is not a fact which is relevant for the purpose of considering whether the petitioner was aware of the decision in Suit No. 320 of 1998. Even if it is assumed that he was not suffering from hypertension, that fact is not relevant for the purpose of considering whether the petitioner had the knowledge of the decision in Suit No. 320 of 1998. Knowledge or absence of knowledge of the decision in Suit No. 320 of 1998 does not depend upon the proof or disproof of the petitioner suffering from hypertension. In the circumstances, it cannot be said that the variance in the pleading and proof has any relevance for consideration of the case of the petitioner that on account of absence of knowledge about the decision, he could not file the appeal in time. 9. In a large number of cases, the Supreme Court has held that liberal approach must be adopted in considering the applications for condonation of delay in filing an appeal. A person has no vested interest in not filing the appeal in time. If a person has to file an appeal, there is no reason why he would deliberately not file the appeal in time. In the present case, no motive is alleged against the petitioner for not filing the appeal 6 WP 2917/2011 in time. In the circumstances, in my view, the lower appellate Court erred in refusing to condone the delay in filing the appeal. 10. For these reasons, the impugned order is quashed and set aside and Misc. Civil Application No. 128 of 2008 made by the petitioner for condonation of delay in filing the appeal in the District Court at Sangli is allowed. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)