( 1 ) sa749.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 749 OF 2009 WITH CIVIL APPLICATION NO. 10984 OF 2009 Chaudhary Fayyaz Qureshi s/o. Mohammed Haji .. Appellant Qureshi Versus Garima w/o. Kulbhushan Jain .. Respondent Mr. S.S. Kazi, Advocate for the appellant. Mr. A.S. Bajaj, Advocate for sole respondent. CORAM : A.V. NIRGUDE, J. DATED : 27.07.2011 P.C. :- 1. This appeal challenges the judgment and order dated 15.07.2009 passed by the District Judge-I, Aurangabad, in Misc. Application Requiring Judicial Inquiry No. 103 of 2008. 2. The appellant was the applicant before the learned District Judge. He was seeking condonation of delay of over two years period caused in filing of the first appeal. The appellant was defendant in Regular Civil Suit No. 657 of 2001, filed by the respondent. This was a suit for possession based on notice issued under Section 106 of the Transfer of ( 2 ) sa749.09 Property Act. It is the case of the respondent that the appellant was her tenant/lessee in respect of a plot of land, which was leased out to the father of the appellant in 1963 for the period of 99 years and that he had committed default in paying rent, so the cause of action arose etc. . The suit was filed in 2001. The appellant was served with summons. He appeared before the Trial Court and yet he did not file written statement. Thereafter, the suit remained pending till 2005. On 30th November, 2005, the suit was decreed ex-parte. The appellant, thereafter, obtained certified copy of the judgment and decree on 15th October, 2007, but could file application seeking condonation of delay only on 3rd March, 2008. The appellant stated in his application that he was suffering from serious illness during the pendency of the suit and therefore he could not file written statement. He stated that due to the illness he did not attend the case and could not know about the judgment and decree, which was passed in 2005. He said that he learnt about the decree only in July, 2007 when notice of execution was served on him. He said that thereafter he went to the Court and tried to obtain certified copy. He said that this application was misplaced by the staff of the Court and ultimately and rather belatedly he obtained the same on 15th October, 2007. He, however, did not explain as to why he did not file application immediately after obtaining the certified copy. The learned Judge of the lower Court did not accept his case and held that the delay cannot be condoned because there was no proper explanation given. 3. The following substantial questions of law arose in this appeal. ( 3 ) sa749.09 (i) Whether the learned Judge of the Lower Court erred in not appreciating the fact that the suit is filed in respect of immovable property and that there was admittedly a lease of 99 years in favour of the appellant? (ii) Whether the learned Judge of the Lower Court erred in not allowing the application on payment of costs? 4. Indeed, the application moved by the appellant in the Lower Court was shabbily drafted. He led no evidence in respect of illness. Neither he explained as to what had happened in the Court when he struggled to get certified copies for three months. He did not explain as to why he did not file appeal immediately after he obtained certified copies. The learned Judge of the Lower Court wanted the parties to lead oral evidence on this application seeking condonation of delay (though generally such applications are decided on the basis of affidavits) and he mentioned that the appellant did not make himself available for cross- examination. The learned Judge ought to have taken into account the fact that the suit land is valuable property situated in Aurangabad city. This property was admittedly leased out to the appellant’s father for 99 years. It has also come on record that the appellant is controlling the property all alone though he has several other co-heirs. The learned Judge also ignored the fact that the respondent’s earlier efforts to evict the appellant and his co-heirs from the suit property had failed and said matter is pending at second appeal stage in this Court. In this background, the learned Judge of the Lower Court should have asked the appellant to pay heavy costs for seeking indulgence of the Court. 5. The learned Counsel appearing for the respondent placed ( 4 ) sa749.09 reliance on two judgments of the Supreme Court, namely, Pundlik Jalam Patil (Dead) by LRs. Vs. Executive Engineer, Jalgaon, Medium Project & Anr., (2008) 17 S.C.C. 448 and Oriental Aroma Chemicals Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr., (2010) 5 S.C.C. 459. Both the judgments of the Supreme Court held that if false plea is taken for seeking condonation of delay, the same should not be entertained. In this case the pleas that are taken by the appellant cannot be said to be false. At the most it can be said that the explanation is insufficient and is not supported with necessary evidence. The entire application as said above smacks of utter negligence on the part of the appellant. 6. The learned Counsel appearing for the respondent also invited my attention to the conclusion of the learned Judge of the first Appeal Court that on facts and circumstances of the case the appellant purposely delayed filing of this application and the appeal. I do not agree with the conclusion because a litigant who is facing eviction from valuable piece of property would not purposely cause delay in challenging an adverse order passed against him. I think the learned Judge of the Lower Court has taken rather too strict view on the facts of the case. 7. I am of the view that having regard to the nature of the case, I am inclined to take liberal view in respect of application seeking condonation of delay. However, said indulgence would entail heavy costs. The application is allowed on payment of costs of Rs.1,00,000/- (Rupees One Lakh) by the appellant to the respondent. The costs shall be paid to the respondent on or before 30th August, 2011. In case of failure to pay the costs within stipulated period, the appeal shall stand dismissed. The first Appeal Court shall decide the appeal on merits. ( 5 ) sa749.09 8. The Second Appeal stands disposed of accordingly. 9. In view of disposal of the Second Appeal, Civil Application for stay does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/JUL11/sa749.09/ok