1 sa592.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 592 OF 2011 Ashruba Baburao Bedre, Age: 70 years, Occ: Agri., R/o. Chatra Borgaon, Tq. Majalgaon, District Beed through Power of attorney Shriram Babasaheb Bedre, Age: 24 years, Occ: Agri., R/o. Chatra Borgaon, Tq. Majalgaon, District Beed. ...APPELLANT VERSUS Uddhav s/o Gangadhar Bedre, Age: 29 years, Occ: Agri., R/o. Chatra Borgaon, Tq. Majalgaon, Dist. Beed and others. ...RESPONDENTS ... Mr. Vivek Bhavthankar, Advocate for appellant. Mr. B.S. Kudale,Advocate for Resp. Nos. 1 & 2. ... CORAM: S.S. SHINDE, J. DATE : 21ST NOVEMBER, 2011 PER COURT : . This Second Appeal takes exception to the judgment and order dated 21-02-2006 passed by the 2nd Joint Civil Judge, Junior Division, Majalgaon, in Regular Civil Suit No. 01 of 1998. Following 2 sa592.11 substantial question of law falls for consideration in this second appeal. "Whether the lower appellate Court could have dismissed the Misc. Civil Application on the ground of one month five days delay in filing the appeal by defeating substantial right of appellant to prosecute the appeal?" 2. Learned Counsel appearing for the appellant would submit that, the appellant was suffering from jaundice and therefore, he could not give instructions to his Lawyer to file the appeal within time. This position is disputed by the Counsel for the respondents. According to learned Counsel for the respondents, there are four major sons to the appellant and therefore, instructions would have given to the Advocate and also medical certificate should have been produced on record to substantiate the contention of the appellant that he is suffering from jaundice and therefore, according to learned Counsel for the 3 sa592.11 respondents, the appeal is devoid of any merits and may be dismissed. 3. I have given due consideration to the rival submissions. It is not in dispute that, there was delay of one month five days in filing the appeal. It is true that, since there was some delay in filing the appeal, some right has been accrued in favour of the respondents and therefore, the respondents are required to be heard before entertaining the prayer for condonation of delay. However, the fact remains that, substantial right of the appeal of the party cannot be defeated by taking technical view in the matter. The delay was not so substantial and it was possible for the lower appellate Court to condone the delay by accepting the explanation given by the appellant that he was suffering from jaundice. It is true that, by delay in filing proceedings, the other side is put to some inconvenience but by imposing reasonable costs, the application for condonation of delay should 4 sa592.11 have been allowed by the lower appellate Court. 4. Therefore, taking overall view of the matter and looking into length of delay and also statement of the appellant on oath that, at the relevant time the appellant was suffering from jaundice, I am inclined to allow the Second Appeal subject to payment of costs of Rs.3000/-, to be deposited by the appellant before the lower appellate Court within four weeks from today. Upon depositing such amount of costs, the respondents will be entitled to receive the same without any formal application and without any condition. 5. The impugned judgment and order dated 30-08-2006 passed by the 1st Adhoc Additional District Judge, Majalgaon in Misc. Civil Application No. 15 of 2000 is set aside. The said application for condonation of delay is allowed subject to payment of costs of Rs.3000/- (Rs. Three thousand only) within four weeks from today before the lower appellate Court. After 5 sa592.11 depositing such costs of Rs.3000/-, the concerned Court to register the said appeal and proceed with the appeal on its own merits in accordance with law. Second Appeal is allowed to the above extent and disposed of. [S.S. SHINDE, J.] sut/NOV11