1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR C.A.NO.6875 OF 2008 IN S.A.ST.NO.11554 OF 2008 Maroti Shrihari Shedame and ors. ..vs.. Rambhau Mahadeo Soor. C.A.NO.523 OF 2009 IN S.A.ST.NO.11555 OF 2008 Maoti Shihari Shedame and ors. ..vs.. Rmahbua Mahadeo Soor =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- C ORAM : C.L.PANGARKAR, J. DATED : 10th September, 2009. Heard Mr.Dharmadhikari, learned counsel for the appellants and Mr.Jibhakate, learned counsel for the respondent. This application has been filed for condonation of delay in preferring an appeal. There is a delay of 438 days. The Judgment delivered by the first appellate court on 31/1/2007 and the appeal has been filed on 25/7/2008. The appellant seeks to condone the delay. It is the contention of the appellant that he was not at all aware of the delivery of the judgment and they came to know of the judgment only in the month of July, 2008 when a notice of the execution was received by them. It is further contention of the appellants that Maroti – appellant no. 1, who was taking care of the proceedings was alone aware of the proceedings and he had suffered a severe paralytic attack and therefore he was not aware of the delivery of the judgment. 2 It is only on this ground that the delay is sought to be condoned. Respondent resisted the application and contends that there are as many as 4 to 5 appellants and anybody could have contacted the lawyer and could have preferred an appeal within time. It is also contention of the respondent that in some other proceedings, Maroti was attending the court of Sub-divisional Officer. The appellant has filed the certificate of physician showing that the appellant no.1 was suffering from paralysis. It shows that he was suffering from paralysis in March, 2007 and was advised complete bed rest. Even on 2/7/2008 a Certificate was issued from which it is clear that he was advised bed rest. Since there is medical certificate to that effect, there is no reason to doubt its genuineness. Mr.Jibhakate, learned counsel for the respondent submits that even if appellant Maroti was so ill, there was no difficulty as other appellants were available for preferring the appeal In this regard, Mr.Dharmadhikari submits that the appellant no.1 Maroti and father Shrihari were the plaintiffs in the trial court and other appellants were brought on record as heirs of Shrihari. He submits that other heirs were in fact not concerned with the litigation with the property and therefore, it was Maroti who was taking care of proceedings after death of Shrihari – his father. The affidavit discloses so. It may be due to this reason that the rest of the appellants may not have taken steps to file appeal within time. As far as the contention that the appellant Maroti was attending the court is concerned, the learned counsel for the 3 respondent wants to rely on the copy of the notice issued by the Sub Divisional Officer directing the respondent to remain present in respect of the proceedings for measurement. The said notice is issued in the name of the respondent. From that notice it is not clear that Maroti whether attending the proceedings or not. Mr.Jibhakate, learned counsel for the respondent, submits that he has filed an affidavit that the appellant Maroti was attending the proceedings and there is no denial to this fact. Such a statement has been made in the additional affidavit. It is a fact that there is no counter affidavit but then the counter affidavit need not be countered. It appears that because of the fact that Maroti alone was taking care of the proceedings and he was ill, it is quite probable that Maroti was not aware of the judgment having been delivered. Normally, an appellant or the respondent does not appear personally before the appellate court and they get information only when lawyer intimates about the judgment. It may be that, therefore the appellant was not aware of the delivery of the judgment. Considering all these aspects, I find that the delay as occurred in the present matter needs to be condoned. It is accordingly condoned but subject to payment of costs of Rs.1000/- (Rs.one thousand only) to be paid to the respondent within period of fifteen days. List the matter for final hearing immediately. JUDGE. chute