{1} ca598910.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.5989 OF 2010 IN CIVIL REVISION APPLICATION ST.NO.11614 OF 2010 Mohammad Asif s/o Mohammad Basit Siddique Applicant Versus Ismail Khan s/o Haji Abdul Rahman Khan Respondent Mr.H.I.Pathan, advocate for the applicant. Mr.P.F.Patni, advocate for the respondent CORAM : R.M.BORDE, J. DATE : 10 th March, 2011 PER COURT: 1 This is an application seeking condonation of delay of 263 days occurred in presenting the Civil Revision Application. 2 Normally, this Court adopts a liberal approach in condoning the delay and endeavour is always made to decide the matter on its own merits, but this is an exceptional case wherein I am not inclined to exercise discretion in favour of the applicant in condoning the delay caused in filing the Civil Revision Application. 3 The Civil Revision Application is tendered by the tenant-applicant herein raising exception to the order passed by District Judge-1, Aurangabad on 30.04.2009 in MARJI No.194 of {2} ca598910.odt 2008. Respondent-landlord instituted a suit, being Rent Suit No. 4/2005 claiming recovery of possession of tenanted premises. The suit came to be decided on 29.11.2006 and decree of eviction was passed against the tenant. The tenant, although caused appearance before the trial Court, did not file his written statement, nor adduce any evidence or cross examine the witnesses and allowed the proceedings to be decided ex parte. The decree passed by the trial Court on 29.11.2006, directing eviction of the tenant, was subjected to challenge by presenting an appeal which was also barred by limitation and as such the tenant- applicant herein presented an application seeking condonation of delay of one year and four months to the first appellate Court. The first appellate Court rejected the application with following observations: 7 It is undisputed fact that applicant was served with suit summons on 18/8/2005 and appeared before the trial Court through his advocate. It is also an admitted fact that the applicant had not filed his WS in the trial Court till 10/2/2006. Thus it is apparently clear that the applicant had not filed his WS even after 6 months of his appearance in the Court. Hence, the trial Court was required to pass No WS order against the applicant. Thereafter the respondent filed an affidavit under Order XVIII Rule 4 for his oral evidence. An opportunity was given by the trial Court to cross examine the respondent. However, the applicant or his advocate did not remain present and ultimately {3} ca598910.odt the trial Court was required to pass No Cross order against the applicant. Thereafter the matter was fixed on 21/8/2006 for the evidence of the applicant but the applicant did not chose to adduce his evidence. Thereafter the trial Court delivered its judgment on 29/11/2006. From the aforesaid facts it can be safely said that the trial Court had not decided the suit ex parte against the applicant. 8 That apart, there is delay of one year four months and 11 days in filing of the present appeal. According to the applicant he was suffering from jaundice and was under medical treatment. During the course of arguments I had insisted Advocate Shri S.M.Patel to produce medical certificate or any such document which would go to show that the applicant was suffering from jaundice and taking medical treatment. Despite of the same, the applicant did not produce the medical certificate or any such evidence from which one could gather that applicant was in fact suffering from jaundice and was under medical treatment. That apart, the applicant also did not enter into the witness box to adduce his oral evidence in order to establish that he was suffering from jaundice and was under treatment for such a long period which did permit him to file the appeal in time. In the absence of any such evidence on record, it cannot be said that the applicant was suffering from jaundice and was under medical treatment. The applicant has even not filed his affidavit in support of his contention in the application. Thus, the ground mentioned about the sickness of the applicant appears to be false and is taken to gain sympathy of the Court and {4} ca598910.odt to suit the purpose of the applicant. 9 Be that as it may, respondent has filed execution proceeding bearing RD No.9/2007 in the trial Court. In the said proceeding a notice under Order XXI Rule 22 was issued to the applicant and he appeared in the said proceeding on 12/2/2007. This goes to show that the applicant got the knowledge of the judgment and decree passed against him on 12/2/2007. The applicant thereafter could have filed appeal but he merely put his appearance in the Execution Proceeding. The documents produced on record goes to show that the applicant engaged three different Advocates on three different dates i.e. 15/7/2007, 7/4/2007 and 19/11/2007. The applicant appeared in the Execution Proceeding on 11 different dates from 15/2/2007 to 11/4/2008, but he did not prefer appeal during this period. In view of the said facts the argument that the applicant was suffering from illness and was under treatment from September 2006 to January, 2008 does not appear to be correct and appears to be concocted one. 4 The applicant has come with the case that he is suffering from cervical spondylosis and as such could not approach the Court within time, while seeking condonation of delay of 263 days. Along with the application, the applicant has annexed the copies of the examination card issued by a Opthalmologist and a certificate issued by one Ayurvedic Doctor whereunder it has been certified that the applicant is suffering {5} ca598910.odt from cervical spondylosis and maxillary sinus from August 2009. The applicant has not produced any evidence as to what were the circumstances which prevented him from approaching this Court in time. Although it is stated in the application that initially the Second Appeal was presented and it was withdrawn with liberty to file Civil Revision Application, however, it is to be noted that the Second Appeal, which was presented by the applicant, was also barred by limitation. 5 Considering the conduct of the applicant as well as the past history of the litigation, I am not inclined to cause interference in favour of the applicant. In my opinion, this is not a fit case for condoning the delay. The application is devoid of substance. 6 Hence the Civil Application stands rejected. Consequently, the Civil Revision Application also stands rejected. R.M.BORDE JUDGE ******* adb/ca598910