1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 162 OF 2010 1. The State of Maharashtra 2. The Sub-Divisional Officer, P.W.D. Sub Division, Bodwad, Tq. Bodwad, Dist. Jalgaon. ....Appellants. Versus Sau. Kasturabai Sashiram Satre, Age 68 yrs., Occu. Household, R/o. Ranjani, Tq. Jamner, At present Jamathi, Tq. Bodwad, Dist. Jalgaon. ....Respondent. Shri. B.V. Wagh, A.G.P. for the appellants. Shri. S.P. Sonpawle, Advocate for the respondent. CORAM : R.M. BORDE, J. DATE : 5th March, 2010 ORAL JUDGMENT : 1. Heard Shri. B.V. Wagh, learned A.G.P. for the appellants and Shri. S.P. Sonpawle, learned counsel for the respondent. 2. The only substantial question of law that arises in this appeal is, whether the appellants/original defendants have exhibited sufficient cause in seeking condonation of delay that occurred in presenting the appeal before the first appellate Court ? 2 Admit. By consent of learned counsel for respective parties, matter is taken up for final hearing forthwith. 3. The respondent/original plaintiff instituted Special Civil Suit No. 162/2003, claiming decree of removal of construction alleged to have been raised unauthorisedly by the State officials on the suit premises. After proper contest, the suit was decreed by the trial Court. It is not necessary to go in to the merits of the controversy of the matter as the question involved in the appeal is, whether the appellants have stated sufficient cause for short delay in preferring the first appeal. The appeal is stated to be barred by 5 months 18 days. The original defendants/appellants herein stated in the application before the first appellate Court that the judgment and decree was passed by the trial Court on 18.7.2006 and the application for receiving certified copies was tendered on 21.7.2006 and the copies were received on 22nd September 2006. The appeal ought to have presented on 19.10.2007. However, the same came to be presented late. It is stated that the copies were entrusted with the officials of the concerned department. However, the concern official Mr. V.T. Tayade was suffering from some ailment and was required to be operated upon, as such, he proceeded on leave. After he resumed duties, the copies of judgment and decree were forwarded for presentation of appeal. In the process, delay of 5 months 18 days has occurred. The first appellate Court, however, found that the reasons stated by the applicants/original defendants seeking condonation of 3 delay are not convincing, as such, relying upon the judgment reported in AIR 1998 Supreme Court 2276 in the matter of P.K. Ramchandran Vs. State of Kerala and another, the first appellate Court rejected the application for condonation of delay. 4. I have perused the application and order passed by the first appellate Court and heard arguments advanced by learned counsel for respective parties. 5. Shri. Sonpawle, learned counsel for respondent, vehemently opposed the request seeking condonation of delay. It is contended that there can be no separate consideration only because State is approaching seeking condonation of delay. However, in the instant matter, no separate considerations are given and no laxity is being shown in the matter of condonation of delay only because State is a party approaching the Court. Normally endeavour has to be made to dispose of the matter on its own merits and this Court is consistently adopting liberal approach in the matter of condonation of delay irrespective of the fact that the party approaching is the State Government or the private litigant. While directing condonation of delay, one of the factor, that is required to be taken in to account, is as to whether the party, who is responsible for causing delay, is being benefited. In the instant appeal, it cannot be said that the delay is unreasonable and the State has secured any benefit by presenting the 4 appeal. 6. The counsel appearing for the respondent has placed reliance on AIR 1988 Bombay 176 in the matter of Laxman N. Divekar Vs. State of Maharashtra. In the said matter, the delay was of about 750 days and the reason stated was in respect of rush of administrative work. The facts in the cited appeal are not comparable with the facts in the present appeal. Hence, the judgment has no application with the facts of the instant case. Similar is the case in respect of the matter on which reliance is placed on by counsel appearing for respondent, reported in AIR 1988 Supreme Court 897 in the matter of G. Ramegowda Vs. The Special Land Acquisition Officer. The counsel also places reliance on the judgment reported in AIR 1962 Supreme Court 361 in the matter of Ramlal and others Vs. Rewa Coalfields Ltd. The question before the Apex Court was of exhibition of due diligence by the party approaching the Court seeking condonation of delay. The facts appearing in the judgment are distinguishable from the facts stated in the present case. The Apex Court in the judgment has ruled that even after showing sufficient cause the a party is not entitled to condonation of delay as a matter of right. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S. 5. In the instant matter, however, I am of the opinion that sufficient cause is exhibited by the appellants/original defendants seeking condonation of delay. The other judgments on which reliance is placed by the counsel 5 appearing for the respondent are in the matters of Jagdish Sawhney v. Harbans Singh and others, AIR 2000 Supreme Court 3143 and State of Haryana v. Chandra Mani and others, AIR 1996 Supreme Court 1623. However, each case has to be considered on merits of the contentions raised in the appeal. In the instant matter, I am of the the opinion that the explanation tendered by the appellants seeking condonation of delay is reasonable and as such, ought to have been accepted by the first appellate Court. The delay which has occurred is not unreasonable. So also it has to be considered that the party who is approaching the Court is not unduly benefited because of occurrence of delay. 7. In this view of the matter, I am of the opinion that the appeal is required to be allowed and same is accordingly allowed. The order passed by the District Judge-2, Jalgaon in Misc. Civil Application No. 93/2007 on 24th of July 2008 is quashed and set aside, however, subject to payment of cost of Rs. 5000/- (Rs. five thousand) payable by the appellants to the respondent within eight weeks from today. The first appellate Court shall proceed to decide the appeal in accordance with the provisions of law. [ R.M. BORDE, J. ] ssc/sa162.10