1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 37 OF 2010 1. Haribhau s/o. Vithal Gaikwad, Age 43 yrs., Occu. Agriculture, 2. Kakanu s/o. Vitthal Gaikwad, Age Major, Occu. Agriculture, Both R/o. Salgara, Tq. & Dist. Latur ....Appellants. Versus Ramkishan s/o. Surajmal Rathi, Age 66 yrs., Occu. Agriculture, R/o. Salgara, Tq. & Dist. Latur, At present resididing at Latur. ....Respondent. Shri. P.R. Tandale, Advocate for the appellant. CORAM : R.M. BORDE, J. DATE : 5th March, 2010 ORAL JUDGMENT : 1. Heard Shri. P.R. Tandale, learned counsel for the appellants. 2. Admit. 3. The only substantial question of law that arises for consideration 2 in this appeal is, whether the appellants/original defendants have exhibited sufficient cause in respect of condonation of delay of 2 months 7 days occurred in presenting the first appeal before the lower appellate Court ? 4. The original plaintiff/respondent instituted a suit, claiming recovery of possession of land. It is needless to go in to the merits of controversy of the matter and suffice it to mention that the suit presented by the plaintiff came to be decreed by the trial Court in view of the judgment and decree dated 13.4.2004. The appellants/original defendants preferred an appeal raising exception to the judgment and decree passed by the trial Court. However, the same was barred by two months 7 days. As such, miscellaneous civil application was presented by the appellants seeking condonation of delay. The first appellate Court, however, rejected the said miscellaneous civil application by judgment and order dated 21.7.2006. Hence, the second appeal. 5. The appellants/original defendants in their application have contended that the appellant No. 2 was away from the village whereas the appellant No. 1 was unable to move because of illness and was advised bed rest. Therefore, some delay was caused in presenting the appeal. It is stated that the delay is not intentional and the appellants are also not unduly benefited because of the delay. 3 6. I have perused the application as well as the impugned order passed by the first appellate Court. Notice was directed to be issued to respondent informing that the appeal would be taken up for final disposal at the admission stage. However, in spite of service of notice, none appears for respondent. 7. This Court normally takes liberal view in the matter of condonation of delay and I am also of the view that endeavour has to be made to dispose of the matter on its own merit. Hence, in the instant matter, in my opinion, the appellants have explained sufficient cause for condoning delay of 2 months 7 days occurred in presenting the miscellaneous civil application before the first appellate Court. The delay is undoubtedly also not long and it cannot be inferred that the appellants/original defendants are being unduly benefited by occurrence of such delay. The standard of proof which is required to be applied while dealing with the application in respect of condonation of delay, it is not so rigorous. The applicants seeking condonation of delay are expected to merely bring to notice circumstances compelling them to approach Court late. It would suffice the purpose if reasonable explanation for occurance of delay is offered. So also it shall be taken note of that a litigant is not normally benefited by tendering appeal late. The first appellate Court ought to have taken a liberal view of the matter. 8. For the reasons stated above, I am of the opinion that the appeal 4 presented by the appellants/original defendants needs to be allowed and the same is accordingly allowed. The judgment and order passed by the Additional District Judge, Latur on 21.7.2006 in Misc. Civil Application No. 85/2004 is quashed and set aside. The first appellate Court shall proceed to decide the appeal in accordance with provisions of law. In the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of the appeal pending civil application, if any, does not survive and stands disposed of. [ R.M. BORDE, J. ] ssc/sa37.10