1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 23/2010 (Yogeshwar K. Meshram VERSUS Ashok K. Meshram & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri N.S. Agrawal, counsel for the appellant. Shri G.M. Bagde, counsel for the R-1. Shri P.S. Ganer, counsel for the R-2 to 7. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 12, 2010 . By this appeal, the appellant challenges the order passed by the District Judge-9, Nagpur on 28.10.2009 rejecting the application filed by the appellant for condonation of delay of 904 days in filing the first appeal. I have heard the learned counsel for the parties and have perused the contents of the application for condonation of delay, the reply filed thereto and the order passed by the District Judge-9, Nagpur on 28.10.2009. The appellant is the original defendant no.5. A suit was filed by the plaintiff for partition and separate possession of his share in the suit properties. Though the appellant was served, he remained absent and the matter proceeded exparte. The trial Court by the judgment dated 20.12.2006 decreed the suit filed by the plaintiff for partition. 2 The present appellant had filed the first appeal along with the application for condonation of delay in filing the same after a period of nearly three years on 18.07.2009. It is the case of the appellant that he was extremely worried and not mentally fit during the pendency of the proceedings before the trial Court and he was not properly guided by the counsel about the developments in the case. It was the case of the appellant that his daughters namely Minakshi and Alka, who were 32 and 30 years of age, were extremely handicapped and were not in position to take care of themselves. It is then stated in the application that the applicant became aware of the passing of the judgment and decree dated 20.12.2006 recently and without wasting any time, he filed the first appeal. The application filed by the appellant was strongly opposed by the plaintiff. The learned District Judge, on an appreciation of the pleadings and the documents, by the order dated 28.10.2009 rejected the application for condonation of delay. The order dated 28.10.2009 is challenged by the present second appeal. The only submission made on behalf of the appellant before this Court is that the learned District Judge-9, Nagpur did not consider the reasons stated by the 3 applicant in paragraph 4 of the application for condonation of delay in filing the appeal. According to the learned counsel for the appellant, it was necessary for the District Judge-9, Nagpur to have considered the reasons stated in paragraph 4 of the application before rejecting the application for condonation of delay in filing the appeal. The learned counsel for the respondents, however, supported the order dated 28.10.2009 and submitted that the learned District Judge-9, Nagpur had rightly rejected the application for condonation of delay as the reasons stated by the applicant-appellant in the application for condonation of delay were extremely vague and were not sufficient for condoning the inordinate delay of nearly three years in filing the first appeal. On hearing the learned counsel for the parties and on perusal of the order dated 28.10.2009, it appears that the first appellate Court did not commit any error in rejecting the application filed by the applicant for condonation of delay in filing the first appeal. It is necessary to note that in paragraph 4 of the application for condonation of delay, the applicant has merely mentioned the reasons which prevented him from participating in the proceedings before the trial Court. In paragraph 4 of the application, it is stated that the 4 applicant was worried and not mentally fit to concentrate on the case and had also to look after his two mentally handicapped daughters. In fact, the applicant-appellant should have stated the cause for belatedly filing the application after gaining the knowledge about the passing of the order by the trial Court. In the instant case, it is necessary to note that the applicant-appellant has not stated in the application that he became aware of the judgment and decree on a particular date and then without wasting any further time he had filed the appeal before the first appellate Court. Since the date of knowledge of passing of the judgment and decree is not stated in the application, the District Judge-9, Nagpur rightly held that the applicant-appellant had not approached the Court with clean hands and had suppressed the fact that he had participated in the proceedings before the executing Court. The learned District Judge-9, Nagpur rightly held that the applicant-appellant had not mentioned the exact delay in filing the application and had also not given any reasonable explanation for the delay caused in the filing the application after gaining the knowledge of passing of the decree by the trial Court on 20.12.2006. The application filed by the applicant-appellant on 18.07.2009 is as vague as it could be and in paragraph 4 of the application, the applicant- 5 appellant has merely given the reasons as to why it was not possible for him to participate in the proceedings before the trial Court in view of the details stated in paragraph 4 of the application. The first appellate Court rightly thought that the facts stated in paragraph 4 were not relevant for deciding the application for condonation of delay and it was necessary for the applicant to have disclosed the date of knowledge of the decree dated 20.12.2006 and the delay caused thereafter in filing the first appeal. The application filed by the appellant is, however, conspicuously silent on this material aspect. In the facts and circumstances of the case, it is clear that the appellant was not diligent in prosecuting the matter before the Court and there was also absence of sufficient cause in belatedly filing the appeal before the first appellate Court along with an application for condonation of delay after a period of nearly three years from the passing of the decree. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE