1 Second Appeal no. 920.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 920 OF 2009 Smt.Sindhubai w/oBhawrao Shinde ... Appellant V E R S U S Sow Arunabai W/o Vithalrao Bhosle and others ... Respondents ... Mr. C.R.Deshpande,Advocate for Appellant. Mr. T.M.Venjane, Advocate for respondent no.1. Mr. S.I.Nandole,Advocate for respondent nos.3A & 3B.. ... CORAM : V.R.KINGAONKAR, J. DATED : 18TH DECEMBER, 2009 PER COURT 1] The appeal is taken up for final hearing in as much as single substantial question of law involved in this appeal is; 1.Whether in the facts and circumstances of the present case, the First Appellate Court committed patent error while dismissing the delay condonation application (Misc. Civil Application No. 133 of 2004) and thereby erroneously dismissed the appeal ? 2 Second Appeal no. 920.09 2] Respondent no.1 Arunabai is married daughter of deceased Govindinrao Shinde. She filed a suit for partition and separate possession. She asserted that she is entitled to claim share in the agricultural land and the house property left by her father at village Warwanti, under Latur Tahsil. The suit bearing Regular Civil Suit No. 561 of 1998 came to be decreed. The appellants were original defendants in that suit. Respondent no.2 Vaijnath was original defendant no.1. He and husband of appellant No.1 namely Bhaurao are sons of deceased Govindrao Shinde. 3] The appellants preferred an appeal against partition decree. There was delay in filing of the appeal. They filed delay condonation application. According to them, there was delay of 95 days for the reasons that the appellant no.1 is old aged woman and other appellant nos.1 to 4 are minors, whereas, appellant no.5 is aged more than 71 years and as such she is unable to move here and there. They contended that original defendant no.1 Vaijnath waslooking after the litigation. However, 3 Second Appeal no. 920.09 due to his collusion with plaintiffs he did not prefer any appeal against the partition decree. They submitted that they are depending on respondent no.2 (Defendant No.1 Vaijnath) and later on came to know that none had attended the suit for and on their behalf. They further submitted that due to financial crises they were unable to arrange for court fees and necessary expenditure required to prefer an appeal. They contended that the delay was un-intentional. Consequently, they sought condonation of delay of 95 days. 4] Learned District Judge, rejected their application on the ground that the subsequent application (Misc. Civil Application No. 69 of 2006 ) was withdrawn by them and that the reasons stated in the application were not sufficient so as to condone the delay. 5] Heard learned counsel for the parties. 6] At the outset it may be stated that withdrawal of the subsequent application (Misc. 4 Second Appeal no. 920.09 Criminal Application No. 69 of 2009) has no bearing on merits of the application which was filed earlier. The applicants withdrew the said application on the ground that already previous application was filed and was pending, but due to lack of communication subsequent application was filed. It appears that there was no contrary stand taken by the applicant in the said application. The withdrawal of subsequent application does not show malafides of the applicants. 7] It is well settled that liberal approach is required to be taken in the context of the delay condonation. If the explanation is found satisfactory, ordinarily the delay has to be condoned. It is only when delay appears to be intentional or due to untenable reasons that such application may be dismissed. In the peculiar circumstances and situation of the present case, such aspect was not properly appreciated by the learned District Judge while deciding the delay condonation application. The appellant no.1 is a 5 Second Appeal no. 920.09 widow, other appellant Nos.2 to 4 are minors and appellant No.5 is old aged woman of about 72 years. They expressed the difficulties and disabilities. Considering the fact that the appellant no.1 and 5 are illiterate women, it is quite probable that they depend upon original defendant No.1 Vaijnath. It is probable that they would be under impression that he would take care of the defence to be put forth on their behalf. They were not likely to have any reason for causing the delay. They are inhabitants of rural area. The appellants had categorically alleged that original defendant no.1 Vaijnath ditched them and sided with original plaintiffs and as such the delay had been caused. This can be treated as sufficient cause for condonation of the delay. The learned District Judge, did not take a pragmatic view of the matter and rejected the application only on the ground of withdrawal of subsequent application and uncrystallized explanation put forth by the applicants. Considering the facts and circumstances of the present case, I am inclined to hold that the appellants are entitled to knock 6 Second Appeal no. 920.09 the doors of the First Appellate Court through their appeal. 8] In the result, the appeal is allowed. The impugned order is set aside. The delay condonation application be deemed as allowed subject to costs of Rs.2000/-( Rs. Two Thousand) payable to respondent no.1 Arunabai as condition precedent, within period of four weeks, before the First appellate Court. The parties are directed to appear before First Appellate Court on 25th January,2010. Sd/- ( V.R.KINGAONKAR, J.) MTK/