- 1 - 315.1320 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.315 OF 2011 in SECOND APPEAL (ST) NO. 1320 OF 2011 1.Smt.Kesharbai Prabhakar Gorde & ors .. Applicants vs 1.Smt.Indubai Prabhakar Gorde & ors..Respondents Mr.Sachin Gite for Applicants Mr.P.S.Pathak for Respondents CORAM: G.S.Godbole, J DATE: 15.7. 2011 P.C. 1. Heard Mr.Gite for the Applicants and Mr.Pathak for Respondent Nos.1 and 2. Respondent Nos. 3 and 4 are duly served with Court notice. 2. On the request of Advocate for Respondent Nos.1 and 2 hearing of Civil Application was adjourned to 10th June, 2011 to enable the Respondent nos.1 and 2 to file affidavit-in-reply. However, no reply has been filed. Advocate for Respondent Nos.1 and 2 has however, vehemently opposed the Civil Application on merits at the time of hearing of the Civil Application. - 2 - 315.1320 3. By this Civil Application, the Applicants have prayed for condonation of delay of two years and 284 days in filing the Second Appeal. In Civil Miscellaneous Application No.142/2003 filed in the Court of learned C.J.S.D. Nasik Respondent Nos. 1 and 2 herein were the applicants whereas the Applicants herein were opponent nos. 2 and 2 (c). By order dated 13.7.2007 learned C.J.S.D.Nasik declined to grant relief to respondent nos. 1 and 2 and directed that Succession Certificate shall be granted to Opponent Nos.2 and 2 (a) to 2 (d) therein. Aggrieved by the said order Respondent Nos.1 and 2 herein filed Civil Appeal No.156/2007 in the District Court at Nasik. In the title of the said appeal, by mistake Applicant No.1 herein was shown as deceased. However, by joint purshis dated 14.10.2007 filed below Exhibit 23 in Civil Appeal No.156/2007 the said mistake was corrected. Ultimately, by the impugned Judgment and Order dated 2.1.2008 the learned District Judge Nasik partly allowed Civil Appeal No.156/2007 and after recording a finding that Respondent No.2 is not the widow of deceased Prabhakar and recording a finding that marriage of deceased Prabhakar and Applicant No.1 - 3 - 315.1320 had not been dissolved a Succession Certificate was directed to be granted in favour of Respondent No.2. Aggrieved by the said order, present Second Appeal has been filed. 4. Though the title of Civil Appeal No.156/2007 was duly corrected, in the Judgment, the Applicant no.1 was shown as deceased and hence Applicants had filed a Review Application No.2/2008 which was allowed on 6.4.2009 by the learned District Judge, Nasik. Thereafter for correcting the error in title of the Judgment of the Trial Court, Application No. 32/2009 was filed which was allowed by order dated 7.8.2010. Second Appeal has been filed thereafter on 11.1.2011. Mr.Gite has submitted that on account of the fact that the aforesaid proceedings were required to be filed for correcting the Judgment and the Trial Court proceedings, and on account of the fact that Applicant no.1 is an illiterate old lady and Applicant nos.2 to 4 were married daughters, there is delay in filing Second Appeal. Mr.Pathak, Advocate for the Respondent Nos. 1 and 2 has opposed the Application by submitting that even if there was an error in title, nothing prevented the - 4 - 315.1320 Applicants from filing Second Appeal in the year 2008 after passing of the first Judgment and Order dated 2.1.2008 and explanation offered for the delay is not acceptable. 5. I have carefully considered the submissions. The errors in the Judgment of the Appellate Court and the Trial Court were obviously clerical errors which were required to be corrected. The time spent in making an Application for correcting such errors and decision on such Application till 7.8.2010 will have to be therefore excluded from consideration. The reasons given for condonation of delay in paragraph Nos.8 to 10 of the Civil Application therefore deserve to be accepted. A litigant cannot be permitted to suffer on account of error of the Court. If the Applicants were to file Second Appeal with incorrect certified copies that could have certainly resulted in raising of objections in the Second Appeal and the Applicants were therefore justified in submitting the Application before the Appellate Court and Trial Court. Delay from August, 2010 to January, 2011 when the Appeal has been filed cannot be considered to be exorbitant and Appellants - 5 - 315.1320 cannot be denied opportunity of consideration of their Appeal on merits. 6. For the aforesaid reasons, Civil Application is allowed in terms of prayer clause (a). Office is directed to number the Second Appeal. 7. In order dated 10th June, 2011 it was noted in paragraph No. 3 that Advocate for the Applicants has not filed certified copy of the decree of the Trial Court. However, in view of amendment to Sub-Rule 2 of Rule 12 of Chapter IV of the Bombay High Court Appellate Side Rules with effect from 18.8.2007, it is no longer necessary to file certified copy of the decree of the Trial Court along with Memo of Appeal and filing of certified copy of the Judgment and Order is sufficient. Hence, the said office objection which is wrongly raised shall not survive and shall not be raised by the High Court Registry and the Registry shall number the said Appeal without insisting on filing of certified copy of the decree of the Trial Court. 8. List the Appeal for admission on 29.7.2011 along - 6 - 315.1320 with Civil Application No.316 of 2011. G.S.Godbole,J