1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.3400 OF 2008 IN SECOND APPEAL ST.NO.23388 OF 2007 Ayub s/o Faizuddin Bhai, R/o-Nimgaon, Tq-Vaijapur, Dist-Aurangabad ...APPLICANT. VERSUS Karbhari s/o Haibati Salunke (Died) through his LR's: 1) Gayabai w/o Karbhari Salunke, R/o-titarkheda, Tq-Vaijapur, Dist-Auranganad and others. ...RESPONDENTS. ... Mr.N.D. Sonwane Advocate for Applicant. None present for Respondents. ... CORAM: K.K. TATED, J. DATE : 3RD JULY, 2009. PER COURT : 1. Heard learned counsel for the Applicant. None for 2 the Respondents. 2. Present Civil Application preferred by original plaintiff No.2 for condonation of 1335 days delay in preferring Second Appeal against the Judgment and decree dated 18th January, 2003 passed by Extra Joint District Judge, Aurangabad in Regular Civil Appeal No.372 of 2000 arising out of the Judgment and decree dated 14th September, 2000 passed by Civil Judge, Junior Division, Vaijapur in Regular Civil Suit No.100 of 1997. 3. Learned counsel appearing on behalf of the Applicant states that the Applicant was suffering by Asthma and therefore there is delay in preferring present Second Appeal. In support of his contention, he relied on the certificate issued by Dr. Arvind Annadaate dated 23rd August, 2007. It is stated in the said certificate that: “(B) He is under my treatment for Asthma for last 1 year, hence certificate is issued.” 4. Nowhere it is stated in the said certificate that 3 the Applicant was unable to move from his house. In any case, this cannot be a ground for condonation of such an inordinate delay of 1335 days in preferring the present Second Appeal. Respondent No.3 filed his affidavit in reply for opposing the present Civil Application. 5. It is clear from the averments made in the Civil Application, the Applicant failed to disclose sufficient cause for condonation of 1335 days delay. Our High Court in the matter of Kamalbai w/o Narasaiyya Shrimal and another vs. Ganpat s/o Vithalrao Gavare, reported in 2007 (1) Mh. L.J. 807, held that it is the duty of the Applicant to disclose sufficient cause for delay in the Civil Application itself. Relevant Para 10 of the Judgment reads as under: "10. There cannot be any duality of opinion that normally a litigant would not intentionally commit delay in filing of proceedings like an appeal. The delay cannot be condoned only because it is unintentional. It will be rather too wide interpretation if the condonation of delay is to be allowed only because there is no intention of a party to cause delay. 4 The reason is not far to seek. For, the expression 'intention' connotes state of mind of a person. The state of mind cannot be fathomed without there being attending circumstances. In the present case, there is only allegation that the petitioners had no intention to cause delay. There are sufficient attending circumstances placed on record to bolster up such allegations. There is nothing on record to fathom the mind of the petitioners and, particularly when they were sleeping over their rights while they were made aware of the execution proceedings and had not resided to participate in the same. Secondly, the ground of poverty and helplessness is also too vague and a slippery phraseology used in the application. The petitioners never explained as to when the so called disability was removed and how they surmounted the difficulty at the time of the filing of the appeal at a belated stage after six months. The learned District Judge has observed that mere poverty cannot be a ground for condonation of the delay. One cannot be oblivious the fact that the grounds for condonation of 5 delay are required to be spelt out clearly and distinctly in the application filed under section 5 of the Limitation Act." 6. In view of the above facts and circumstances, as the Applicant failed to disclose sufficient cause for condonation of delay, the Civil Application for condonation of delay is rejected. 7. In view of the rejection of Civil Application for condonation of delay, nothing survives in Second Appeal St. No.23388 of 2007 and therefore registration of the same is refused. [K.K. TATED, J.] asb/JUN09/ca3400.08