1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 1081 OF 2003 IN SECOND APPEAL STAMP NO. 29247 OF 2002 Bhagwan S/o Madhav Borade .. Applicant Versus Sandipan S/o Apparao Borade and others .. Respondents Mrs. M. A. Kulkarni, Advocate for the Applicant. Shri V. G. Mete, Advocate for the Respondent No. 1 and 3. Respondent No. 2, 4 to 8 served - absent. CORAM : N. D. DESHPANDE, J. DATE : 03RD NOVEMBER, 2009. ORAL ORDER : 1. Heard Mrs. Kulkarni learned counsel for the applicant and Shri Mete, learned counsel for the respondents No. 1 and 3. This is an application for condonation of delay filed under Section 5 of the Limitation Act 1963. The impugned judgment and decree is dated 06.07.2002 passed by Additional District Judge, Osmanabad in Regular Civil Appeal No. 207/1993. Mrs. Kulkarni has given certain 2 account of facts explaining the delay into the matter. According to her submissions the impugned judgment and decree is dated 06.07.2002. The said judgment and decree came to the knowledge of the appellant/applicant on 14.08.2002, who is original defendant No. 1. He came to know about dismissal of his appeal and he contacted his lawyer for getting certified copies of the judgment and decree. His lawyer applied for certified copy on 31.10.2002, despite the instructions given to him that he was desirous to file second appeal. He received certified copies of the judgment and decree on 12.11.2002. 2. He waited for getting the copies of the judgment and decree of the Trial Court, which he received on 09.12.2002. With all readiness and preparedness he came to Aurangabad and filed his second appeal on 16.12.2002 with a delay of 73 days. Except these facts no grounds are stated in the application for condonation of delay. 3. During the course of hearing it revealed that, both the Courts below passed the judgment against the defendant who is appellant before this Court. The plaintiffs suit was for perpetual injunction simplicitor on the basis of title and possession which he got on the basis of registered sale deed in respect of suit land which is subject matter. The appellant/applicant contended that, he was put in possession of the suit land on the basis of agreement of sale from 1959. Therefore, the second appeal has been directed against the judgment and decree which is operating for perpetual injunction which certainly cannot be said to be substantive suit as told. It is 3 true that while deciding the application for condonation of delay under Section 5 of the Limitation Act 1963, the merits of the matter are not to be considered. 4. Any suit filed in the Civil Court no doubt would cause prejudice to the person who is defending suit and, therefore, when the appellant who is defendant has lost in both the Courts below and the decree of only perpetual injunction is operating, he would have been more vigilant for taking decision whether he should file second appeal or not, because it would also cause prejudice to other side. There are no convincing reasons stated except that he got the knowledge of dismissal of his appeal on 14.08. 2002, regarding the impugned judgment dated 06.07.2002, passed by the first appellate Court, where he was original appellant. No period can be reckoned merely from the date of knowledge unless it is the case of fraud and discovery of fraud to his knowledge. It is very difficult to investigate into the facts that, the appellant/applicant got the knowledge on 14.08.2002 and not before. Even after getting knowledge on 14.08.2002 he or his advocate did not apply for certified copy immediately. Admittedly, it was filed on 31.10.2002 nearly after about two months and no immediate steps were taken even after they received the certified copies of the impugned judgment and decree. 5. Party not only should possess merits of the case, but must be vigilant while prosecuting the appeal, when it is certainly going to cause prejudice to the appellant. In that view of the matter no case 4 is made out for condonation of delay, as there was no sufficient cause for not preferring the appeal to the satisfaction of this Court. The application for condonation of delay stands dismissed after hearing both the sides. The civil application is disposed of. [ N. D. DESHPANDE, J.] bsb/Nov. 09