1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR C.A.S.NO.3233 OF 2006 IN SECOND APPEAL ST. NO.2524 of 2006 Aminabee w/o Daulatali (dead) through L.Rs. Hasanali Daulatali and ors ..vs.. Usmanali Risalatali and ors. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.Ketan V. Bhoskar Adv. h/f Mr.V.M. Deshpande for the applicant. Mr.S.C.Bhalerao Adv. for resp.no.2. Mr.R.L.Khapre Adv. for resp.no.3. C ORAM : C.L.Pangarkar, J. DATED : 30th March, 2010. 1. This application has been moved for condonation of delay in preferring the second appeal. The appellants are the original plaintiffs. They had instituted civil suit No.56 of 1981 in the court of Civil Judge at Wani. The said civil suit came to be decided in the year 1997. Against the said judgment and decree an appeal was preferred in the District court at Yavatmal. The said appeal was filed in the District court at Yavatmal on 19/4/1997. The appeal, it seems, thereafter came to be transferred to the court of Additional district 2 Judge, Kelapur since new court was established. The appeal was heard by the Additional District Judge at Kelapur and it was decided on 7/2/2003. Against this order of the Additional District Judge, whereby he dismissed the appeal, this second appeal was preferred. 2. The main contention of the appellants/applicants for condonation of delay is that the appeal was entrusted to one Shri Husani Advocate and he intimated the appellants that he has been taking care of the appeal filed in the Kelapur court and the appellants need not worry about the same. It is contended that Shri Husani was aware of the decision in the appeal but did not intimate the appellants about the same and ultimately the appellants had to voluntarily go to Kelapur and find out what has happened to the appeal. It is, therefore, contended that it is only after they voluntarily went to Kelapur, they came to know that the appeal has already been dismissed and it is thereafter that they preferred this appeal. In the circumstances they contend that there has been delay in preferring the appeal which, according to them, is not intentional. 3. The application has been opposed by the respondents. The respondents have contended that the allegations as made in the application are 3 totally false. According to them, the appellants had engaged Shri M.B.Deshmukh Advocate for filing an appeal. The appeal was initially filed at Yavatmal and it was subsequently transferred to Yavatmal in the year 2002. The respondents contend that the appellants were all the while aware of progress of the appeal and their ignorance about progress of appeal is totally false. The respondents have filed documents suggesting that the appellants were, in fact, aware of the entire proceedings and the progress of the appeal. For these reasons, the respondents contend that the application is liable to be rejected. 4. The learned counsel for the appellants submits mainly that it is because Mr. Husani did not intimate the appellants about the decision in the matter that the appeal could not be presented in time. It is submitted that no client should be allowed to suffer for the lapse on the part of the lawyer. There can be no two opinions with regard to the fact that any client should not suffer for the lapse on the part of the lawyer. The learned counsel for the respondents, however, brings to my notice that the appeal was, in fact, entrusted to Shri M.B.Deshmukh Advocate in the yer 1997. The said appeal was transferred in the court of the Additional District Judge at Kelapur in the year 4 2002. Notices of this transfer, in fact, were issued to the appellants and the appellants had appeared in the court of the Additional District Judge at Kelapur on 25/10/2002. They have filed the pursis to that effect under their own signatures in the court. This clearly shows that the appellants were aware about the transfer of the appeal at Kelapur. Further, on 22/11/2002, the appellants had once again appeared in the court and under their own signature filed an application for adjournment on the ground that Shri Deshmukh Advocate, who was supposed to come from Yavatmal, was not available on that day. This clearly goes to show that Shri M.B.Deshmukh was, in fact, engaged for conducting the appeal before the Additional District Judge. Further, Shri Husani Advocate also filed an application on 20/12/2002 that Shri M.B.Deshmukh was unable to attend and the matter may be adjourned. Further, it seems that the matter was once again adjourned to 10/1/2003. On 10/1/2003 also, learned counsel for the appellants sought an adjournment. Once again adjournment was sought on the ground that Shri Deshmukh Advocate was unable to attend. Ultimately, it seems that on 17/1/2003 written notes of arguments were filed by the counsel for the appellants. The Judgment in the matter has 5 been delivered on 7/2/2003. It is, therefore, clear that the appellants were all the while aware of the progress of the appeal and they had even engaged along with Shri Husani Adv. Shri M.B.Deshmukh Advocate also to represent them. The contention of the appellants that the appellants were merely seeking instructions from Husani Advocate from time to time on phone cannot be accepted. That appears be not correct and is clearly a wrong statement of fact made in the application. Soon after the decision was rendered by the court, Shri Husani had filed an application for obtaining a certified copy. The reason for obtaining certified copy is given as court purpose. It is, therefore, clear that Shri Husani had taken all care to obtain certified copy immediately after the judgment was delivered. It cannot be assumed and accepted that a lawyer would apply for certified copies without intimating the client when he had himself argued the matter and had even obtained the certified copy. It is very easy to put blame on the lawyer but it would be difficult for the client to file an affidavit of the lawyer. All these documents filed on record by the respondents go to suggest that the appellants were all the while aware of the progress of the appeal and the decision of the appeal, and even application for the certified 6 copies. All wrong and false statements have been made in the application. For this reason alone the application is liable to be rejected. The law is well established that the delay howsoever long can be condoned but only when sufficient and good cause is shown. I find that in the instant case the appellants have not shown any sufficient cause for condoning delay. Hence, the application is rejected. JUDGE. chute 7