1 wp5196-11 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5196/2011 (SAHEBRAO GANGARAM KHANDAR, THR. L.R'S PANCHFULABAI SAHEBRAO KHANDAR & OTHERS VERSUS SUNITA NAMDEO BODKHE) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Ramesh Darda, counsel for the petitioners. Shri R.R. Deshpande with Shri K.R. Lule, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 14 , 2011 . By this petition, the petitioners impugn the order passed by the appellate Court on 15.07.2011 dismissing an application filed by one Sahebrao Khandar, the original defendant no.1 for condoning the delay of nearly two years in filing the first appeal. The respondent had filed a suit against her father Sahebrao, her mother Panchfulabai and her brothers, Vijay and Sanjay, for partition and separate possession of her 1/4th share in the suit property. The suit was decreed by a judgment and decree dated 27.02.2009. The defendant no.1- Sahebrao, preferred an appeal against the judgment and decree dated 27.02.2009 on 02.03.2011. Along with the first appeal, he filed an application for condonation of delay in filing the first appeal. It was stated in the application that though the suit was decreed on 27.02.2009, since he was admitted in the hospital for treatment as he was suffering from a heart ailment, he was unable to file the appeal within time. It was stated in the application that Sahebrao wanted to visit his 2 wp5196-11 counsel but, since he was a heart patient, he was unable to move and visit his counsel's office at Arvi. It is further stated in the application that he was not able to execute a deed of Power of Attorney in favour of any person as he was suffering from the heart disease. It is then stated in paragraph 3 of the application that Sahebrao was suffering from a serious disease of cancer since last one year and, therefore, he was not in a position to file the appeal within limitation. The trial Court, however, dismissed the application for condonation of delay by the impugned order dated 15.07.2011. There is no illegality or perversity in the impugned order passed by the trial Court. The trial Court has rightly observed that Sahebrao had failed to reasonably and satisfactorily explain the inordinate delay in filing the first appeal. The Court observed that no material whatsoever was placed before the Court to show that Sahebrao was indeed suffering from some illness during the relevant time. It is also not stated in the application as to when Sahebrao recovered from illness and was in a position to file the appeal. In fact, it is stated in the application that Sahebrao became aware of the judgment when he received the notice of the precept. It is, however, not stated in the application that when Sahebrao received the notice of the precept and what steps he took at the relevant time for filing the appeal. Since the application was as vague as it could be and the delay was not reasonably and satisfactorily explained, the trial Court did not commit any error in rejecting the application. It is further necessary to note that the petitioners, who are now brought on record as the legal heirs of Sahebrao, were party defendants to the suit and they had not challenged the judgment and decree 3 wp5196-11 dated 27.02.2009. Since the impugned order does not suffer from any illegality or perversity, the same cannot be interfered with, in exercise of the writ jurisdiction. The submission made on behalf of the petitioners that the matter should be remanded to the first appellate Court with a view to grant an opportunity to the petitioners to produce the relevant evidence on record is rejected in the aforesaid background and in the facts and circumstances of the case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE