1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.863 OF 2009 Ashok Laxman Bhadak Age : 64 years, Occ : Pensioner, R/o 18-A, Krushnakamal Colony, Near Golibar Tekadi, Dhule. ..Appellant -VERSUS- 1. Pandit Laxmanrao Bhadak Age : 61 years, Occ : Pensioner, R/o 24, Vikas Colony, Sakri Road, Dhule. 2. Smt.Kamalbai W/o Dattatraya Bhadak Age : 65 years, Occ : Household, R/o 70-A, House of Rambhau Marathe Nateshwar Colony, Vakharkar Nagar, Dhule. 3. Satish S/o Dattatraya Bhada, Age : 30 years, Occ : Labour, R/o 70-A, House of Rambhau Marathe Nateshwar Colony, Vakharkar Nagar, Dhule. 4. Sau.Shobha W/o Suresh Kushare Age : 45 years, Occ : Household, R/o 70-A, House of Rambhau Marathe Nateshwar Colony, Vakharkar Nagar, Dhule. 5. Vijay S/o Dattatraya Bhadak Age : 40 years, Occ : Labour, R/o Lane No.6, Near Ghogre, Dhule. 6. Sanjay S/o Dattatraya Bhadak, Age : 24 years, Occ : Labour, 2 R/o Prabhat Nagar, Near D.C. College, Deopur, Dhule. 7. Krushnarao S/o Shankarrao Bhadak, Age : 35 years, Occ : Labour, R/o Galli No.5-6, Bol, in the House of Ramesh Mujge, Kumbharkhunt, Dhule, Dist. Dhule. 8. Smt.Girjabai W/o Shankarrao Bhadak Age : 75 years, Occ : Household, Madal Chawl, Opp.Railway Station, Dhule (Respondent No.8 is deleted as per Hon’ble Court’s order dated 07.08.2009). ..Respondents ... Mr.P.B. Patil, Advocate for appellant. Mr.M.H. Patil, Advocate for respondent no.1 ... (CORAM : V.R.KINGAONKAR,J.) DATE : 14th December, 2009. ORAL JUDGMENT : 1. This appeal is being decided at the peremptory stage in as much as the only material question involved is as to whether the Appellate Court committed patent error while dismissing the application (M.A. No.75/2006), seeking condonation of delay in filing of the said appeal. 2. The appellant is the original defendant no.1. He 3 is real brother of original plaintiff. The plaintiff had filed a suit against the appellant and other seven defendants for declaration that the sale deed dated 20.11.1996 purportedly executed by alleged power of attorney is not binding on him and that the same is liable to be cancelled. By the purported sale deed, 30 Ares land out of survey no.537/1A situated within the municipal limits of Dhule Municipal Corporation was alienated. It was the case of the respondent no.1- plaintiff that he and original defendant nos.2 to 8 are joint owners and purchasers of the said land. He contended that the appellant had obtained shame and bogus sale deed dated 20.11.1996 from so-called power of attorney by name Dattatraya Bhadak to whom no authority was even given by him or other co-owners. 3. It needs to be appreciated that the appellant failed to file his written statement. The original defendant nos.2 to 6 were set exparte. However, the original defendant no.7 filed consent written statement. No attempt was made by the appellant to seek setting aside the exparte order and therefore, the suit proceeded exparte against him. The suit came 4 to be decreed on 20th July, 2006. 4. The appellant filed delay condonation application on 22.12.2006 along with appeal. He submitted that there was delay in filing of appeal because he was suffering from illness. He was required to take medical treatment of Dr.M.G. Agarwal, Dr.Joshi, Dr.Munot, Dr. Patil etc. Consequently, he was unable to approach his Advocate till 28.11.2006. He came to know about the impugned judgment rendered exparte against him and therefore applied for certified copies. After obtaining the copies, he preferred the appeal. 5. The First Appellate Court came to the conclusion that the reasons given by the appellant were insufficient and dissatisfactory. The application came to be rejected. 6. Heard learned Counsel for the parties. 7. The question is whether, the delay was properly explained by the appellant before the First Appellate 5 Court. The First Appellate Court observed that ordinarily liberal approach is required in such matters. It is explicit that the First Appellate Court was aware of the legal position that ordinarily delay is required to be condoned, if sufficient explanation is offered. 8. So far as conduct of the appellant is concerned, the First Appellate Court noticed that he was moving around here and there and was following the daily pursuits of life. It is pertinent to note that the appellant is the pensioner and admittedly used to obtain his pension from S.B.I. Branch, Dhule. He admitted that his house is situated at a distance of about 20 minutes of walk of court premises. It was not his case that he had not come to know about the exparte decision rendered by the trial Court. He admitted that in the year 2006 he attended funeral of one Prabhakar Dighe at Nandurbar. In August, 2006, he attended marriages and social functions. Though, he attempted to show that he was unable to move here and there yet his evidence coupled with the version of P.W. 6 Dr.Munot make it explicitly clear that during 6 in the year 2006, he was never admitted in any hospital as indoor patient. It appears that for the first time on 11.09.2006, he had approached Dr.Munot, who advanced him to get Sonography examination. The only vague statement of the appellant that he was suffering from weakness is not sufficient. He admitted that he also had contacted his Advocate on phone. Considering the conduct of the appellant, two things are very clear. First, he did not attend the trial and failed to file his written statement. He made no attempt to get exparte order de-clamped. Secondly, though he named various medical practitioners in the applications yet was unable to produce any medical certificate either of them except the Sonography report and prescription issued by Dr. Munot. It does not stand to reason, therefore, that he was unable to attend the matter during the relevant period. It appears that his son was also able to help him in the litigation. The appellant could not therefore give satisfactory reason for about delay of about 5 months. Notwithstanding the fact that he resides in the proximity of the Court premises and the legal services are available to him even by contacting 7 the Lawyer on phone, yet he did not make any serious attempt to challenge the impugned judgment rendered by the trial Court within reasonable period. Under these circumstances, I do not find any substantial error committed by the First Appellate Court while rejecting the delay condonation application. 9 In view of aforegoing reasons, the appeal destitute of merit and is dismissed with costs. (V.R.KINGAONKAR) JUDGE GAS/sa863.09