1 S.A. 746 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 746 OF 2010 Dnyandeo @ Dnyaneshwar Jokhaji Kokane & others Appellants V E R S U S Subhash S/o Dnyandeo Kokane & others Respondent Mr. S.S. Deshmukh, Advocate for appellants Mr. Z.M. Pathan, Advocate for respondent Nos. 1 & 2 Mr. R.R. Karpe, Advocate for respondent Nos. 3 to 5 (absent) CORAM : S.V. GANGAPURWALA, J. DATED : 7th April, 2011 PER COURT : 1. The original plaintiff has filed suit for partition and separate possession. The present appellants appeared through their Advocate, but thereafter, they did not participate in the proceedings. The trial Court vide Judgment and Decree dated 29th October, 2009, decreed the suit and granted 1/3rd share to the plaintiff in the suit property. The present appellants preferred an appeal before the District Court, there was a delay of 250 days in filing the appeal. As such, along with appeal, appellants also filed application for 2 S.A. 746 of 2010 condonation of delay which was registered as CMA No. 39 of 2010. The Additional District Judge, Shrirampur, rejected the said application for condonation of delay, aggrieved thereby the appellant has filed the present Second Appeal. 2. Shri Deshmukhi, learned counsel for the appellants, vehemently states that, in fact, the appellant did not get the knowledge of the Judgment and Decree till notice of excution proceedings. They got the knowledge of the impugned Judgment and Decree only when they were served with the notice of execution and after the service of notice of execution on or about 16th June, 2010, the appellants immediately took steps to file the appeal. The learned counsel further submitted that it is not disputed that the appellants could not participate in the proceedings. According to the appellants, the learned Advocate appearing for them before the trial Court did not inform the dates fixed by the Court and suit also proceeded without written statement. The expression “sufficient cause” may be liberally construed, appeal involves valuable rights of the parties in an immovable property. 3. Per contra Shri Pathan, learned counsel for the respondent / plaintiff, submits that it is not the length of delay, but the conduct of 3 S.A. 746 of 2010 the appellant which is relevant. If the conduct of the appellant is seen, then it shows total lack of diligence. On the contrary, it depicts negligence. The learned counsel further contended that the relations between the parties, are of father and son, and in view thereof, it is highly improbable that the appellant would not know the decree passed by the Court. Learned counsel further contends that no satisfactory reasons are mentioned in the application for condonation of delay. They have just blamed the Advocate. It is also duty of the defendants to keep watch of the proceedings, which they failed to do. Defendants have even sold the property inspite of the registration of the lis pendens, as per Section 52 of the Transfer of Property Act. All these acts show that appellants are not entitled for the equitable and discretionary relief of condonation of delay. According to the learned counsel, the lower appellate Court has properly considered all these aspects and has rightly rejected the application. 4. In the light of the above, following substantial question of law arises : 1] Whether the grounds made out in the application for condonation of delay would be within the realm of sufficient cause? 5. Admit. With the consent of parties taken up for final hearing. 4 S.A. 746 of 2010 6. With the assistance of learned Counsel, I have gone through the application and the order passed therein. The dispute between the parties is with regard to the immovable properties. The expression “sufficient cause” has to be liberally construed whenever the technical considerations and cause for substantial justice are pitted against each other, the cause for substantial justice shall prevail. While considering the application for condonation of delay, this Court would not go to the reasonings for the non appearance of the appellant in the suit. There is no contra evidence to show that the appellants got the knowledge of the Judgment and Decree prior to service of notice of execution on 16th June, 2010. In absence of any other contra evidence, the said factum will have to be believed. As such, when the applicants got the knowledge of the Judgment and Decree on 16th June, 2010, and immediately thereafter, after obtaining certified copies, have filed an appeal on 8th July, 2010, it cannot be said that after getting the knowledge of the Judgment and Decree, there was lack of diligence to file appeal, whether the absence of the defendants during the proceedings before the trial Court was bonafide or not would be considered by the lower appellate Court if the appeal is registered and is being considered on merits. 5 S.A. 746 of 2010 7. In the light of the above facts, I am inclined to allow the application. The C.M.A. No. 39 of 2010 is allowed, delay in filing the appeal is condoned, on condition that the appellant pays cost of Rs. 10,000/- (Rs. Ten thousand) to the plaintiff on or before 29th April, 2011. The cost may be paid either to the plaintiff or his counsel, or may be deposited before the lower Court. The parties to appear before the lower appellate Court on 29th April, 2011. The lower appellate Court shall register the appeal, if it complies with all other legal requirements. 8. Consequently, Second Appeal is disposed of. The appellant may apply to the lower appellate Court for stay which application the lower appellate Court may consider on its own merits. ( S.V. GANGAPURWALA, J ) SDM*746.10SA/070411.