1 wp-9601.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9601 OF 2011 Damodar @ Madhukar Shantaram Joshi : Petitioner versus Sudhakar Nagesh Kulkarni (Deceased) Smt.Sunanda Sudhakar Kulkarni and ors. : Respondents. Mr. Dhananjay Rananaware for the Petitioner. CORAM : R M SAVANT, J. DATE : 14th December 2011 P.C. 1 The above Petition takes exception to the order dated 26/9/2011 passed by the learned District Judge­1, Vaduj by which order the Application for condonation of delay of 9 months in filing the Appeal in the District Court came to be allowed. 2 The Respondents herein are the original Defendants who are faced with a decree dated 6/7/2005 passed in Regular Civil Suit No.691 of 1995. The Respondents/original Defendants have filed a Regular Civil Appeal against the said decree. However, on account of the fact that the said Appeal was belated by 9 months, the Respondents/Defendants filed an Application for condonation of delay in the First Appellate Court. The ground made out in the said Application was that the Applicant No.2 in the said Application had undergone an operation at Pune and that the counsel’s wife was a cancer patient. One more ground was made out was that they were not heard whilst the said suit was decreed. 2 wp-9601.11.sxw 3 In so far as the third ground that the Defendants were not heard when the said suit was decreed is concerned, the same was falsified by the record of the said suit, and therefore, the First Appellate Court was of the view that the said ground could not be accepted. The First Appellate Court however on the ground that the dispute was in respect of immovable property and therefore to offer a chance to the Defendants to challenge the said decree on merits, was of the view that the delay ought to be condoned, though other two grounds have not been specifically dealt with, the said grounds seemed to have weighed with the First Appellate Court. 4 The learned counsel for the Petitioner Shri Rananaware would contend that in the absence of sufficient cause being shown the First Appellate Court was wrong in condoning the delay. The learned counsel for the Petitioner placed reliance on the judgment of the Apex Court reported in AIR 2010 SC 3043 in the matter of Balwant Singh (Dead) v/s Jagdish Singh and ors. wherein it is held that though a liberal approach has to be adopted in the matter of condonation of delay, the same would not mean to do unjustice to the another party. In the said case there was a delay in bringing the heirs of the sole Petitioner on record, which delay was to the tune of about 3 years. In so far as present case is concerned, though the First Appellate Court has not adverted to the other two grounds in the Application it would have to be taken that the said two grounds have weighed with the First Appellate Court. 3 wp-9601.11.sxw 5 It is trite that a party should be given a chance to prosecute its remedy on merits rather than being thrown out on the technicalities. Since the First Appellate Court has though it fit to exercise the discretion in favour of the Respondent. In my view, the said discretion need not be interfered with by this Court in its Writ Jurisdiction under Article 227 of the Constitution of India. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]