1 WP No.1992/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1992 of 2010 Mohanlal J. Kori ... Petitioner versus Chintaman Bhagwati Varma & Anr ... Respondents ... Mr. Sandesh Patil for the petitioner. Mr.Sham Valve i/b D.K.Ghaisas for respondent no.1. Mr.Mandar Limaye for respondent no.2. CORAM : D.G. KARNIK, J. DATED : 29th July 2010 P.C. 1. Rule. By consent, Rule is made returnable forthwith. 2. Heard learned counsel for the parties. 3. By this petition, the petitioner challenges the order dated 12 January 2010 passed by the learned District Judge, Thane rejecting the petitioner’s application for condonation of a delay in filing of an appeal. The delay was of 121 days. The petitioner sought to explain the delay on two counts. He firstly contended that the decree was ex-parte and he was not aware of the decision. The advocate engaged by him had 2 WP No.1992/10 not informed him about the hearing as well as the decision and therefore, he could not file the appeal on time. He secondly contended that petitioner had suffered a paralytic stroke and was bed ridden for about 10 years in the past and was still physically handicapped. He was unable to move freely and therefore he was dependent upon the advocate who had not communicated him the date. It is true that some allegations have been made against the advocate engaged by him about he being negligent and not intimating him of the hearing of the decision. Normally, in such circumstances, the advocate should have been joined as a party. However, mere failure to join him as a party may not be a good reason for rejecting the just relief if the petitioner is otherwise entitled to it and the respondents can be adequately compensated by imposing costs. 4. The fact that the petitioner had suffered a paralytic stroke cannot be disputed. Petitioner had examined one Dr.Kokan Debnath in support of his case that he had suffered paralysis. Learned appellate Judge did not accept the evidence of the doctor on the ground that the first doctor who had treated the petitioner immediately after the paralytic stroke was not examined. This appears to be a too technical a view of the matter. There is no reason why the second doctor who stated to treat the petitioner would depose anything false and why the patient would give incorrect history to the treating second doctor. Taking this into consideration, the delay can be condoned subject, of course, to the payment of costs as held earlier. 5. For these reasons, impugned order is set aside and the delay in filing of the appeal is condoned subject to deposit of costs of Rs. 3 WP No.1992/10 10,000/- in the appellate court within six weeks. In the event costs are not deposited within six weeks hereof, the writ petition shall stand dismissed and impugned order shall stand confirmed. Respondent no.1 is allowed to withdraw Rs.5,000/- and respondent no.2 is allowed to withdraw Rs.5,000/- from the costs deposited in the lower appellate court. 5. Rule made absolute to the extent indicated above. (D.G. KARNIK,J.)