1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 4003 OF 2009 Shir Balkrishna Baburao Solaskar. .. Petitioner Vs Shri Ramesh Shrirang Jagtap & Ors. .. Respondents -- Shri P.B. Gujar for the Petitioner. Shri Sugandh Deshmukh for the Respondent Nos.1, 2-B to 2-D. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. . Heard submissions of the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent Nos.1, 2-B to 2-D. Third Respondent is no more. The Petitioner in this Writ Petition is the original Plaintiff. A challenge in this Writ Petition is to an order passed by the learned trial Judge by which an application for condonation of delay has been dismissed. 2. A suit filed by the Petitioner was dismissed for default on 28th February, 2005. According to the case of the Petitioner, he came to know about the dismissal of the suit on 19th August, 2006, and therefore, he filed an application for restoration of the said suit and for condonation of delay. 3. In the application for condonation of delay, it was contended that the Applicant was regularly attending his Advocate’s office. It is stated 2 that the age of the Petitioner is 65 years and he is suffering from various ailments. It is contended that he is suffering from the ailment of Thyroid as well as Hypertension and is under treatment for last three years. It is alleged that the Petitioner was hospitalized in May/June, 2005. 4. The said application was opposed by the Respondents by contending that there was no sufficient cause shown for a long delay. 5. The learned counsel appearing for the Petitioner invited my attention to the evidence adduced by the Petitioner. He submitted that the trial Court ought to have adopted a liberal approach considering the fact that the Petitioner has proved that he was suffering from various ailments. He submitted that the trial Court could have always compensated the Respondents by directing the Petitioner to pay costs. 6. The learned counsel appearing for the Respondents opposed the Petition by pointing out that the trial Court has held that the Petitioner could not establish the grounds pleaded by him as he produced only the xerox copies of the documents which are not admissible in evidence. He submitted that the case of the Petitioner that he was suffering from various ailments and that in May/June, 2005, he was hospitalized has not been established. He submitted that there is no explanation for delay. 7. I have given careful consideration to the submissions. In the application for condonation of delay, it is sought to be contended by the 3 Petitioner that he was not maintaining good health from the year 2003 and that he was admitted in Southern Command Hospital, Pune, between 24th May, 2005 to 5th June, 2005. The Petitioner adduced evidence by filing an affidavit in lieu of examination-in-chief. In Paragraphs 3 and 4 of the said Affidavit, the Petitioner has stated thus:- “3. I am old person of 66 years of age. I am suffering from hypertension and thyroid since last so many years. I am under treatment of Southern Command Hospital, Pune since last three and half years. 4. I was sick on 28/2/2005 Thereafter my illness was increased and then I had to admit myself in hospital between 24/05/2005 to 05/06/2005. Even thereafter I had to undergo medical treatment and had to attend medical practitioner time and again. During the last period of about 2 years I had to undergo tremendous physical and mental strain.” 8. There are xerox copies of the medical certificates produced on record for the period from the year 2003. The hospital discharge slip substantiates the case of the Petitioner that he was suffering from the ailment of Thyroid. 9. The suit filed by the Petitioner was dismissed for non- prosecution. The application was filed under Section 5 of the Limitation Act, 1963. AS per the settled law, the Court ought to have adopted a liberal approach while deciding such application. The observation of the Court that the Petitioner ought to have explained each and every day’s delay is contrary 4 to the established law. 10. This was a case where the delay ought to have been condoned by directing the Petitioner to pay heavy costs. In the facts and circumstances of the case, the amount of costs is quantified at Rs.10,000/-. The learned counsel appearing for the Petitioner has handed over a Demand Draft in the sum of Rs.10,000/- drawn in favour of the 1st Respondent to the Advocate for the 1st Respondent who has accepted the same without prejudice to the rights and contentions of the 1st Respondent. 11. Hence, I pass following order. (a) The impugned judgment and order is quashed and set aside. (b) Misc. Application No.14 of 2006 is allowed. (c) The trial Court will proceed to hear the main application for restoration of the suit in accordance with law. (d) Hearing of the application is expedited. (e) The Writ Petition is disposed of in above terms. JUDGE ash