1 SA 490.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 490 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.B.S.Kudale,Advocate for the appellant. Mr. S.J.Salunke, Advocate for the respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 20/04/2011 PER COURT : 1. The present respondent had filed suit for injunction restraining the defendant from interfering in their possession in respect of the suit land. The trial Court vide its Judgment and decree dated 27/4/2007 partly decreed the Suit. The defendant no. 12 filed Appeal before the District Court. There was delay of 2 years and 4 months in filing the Appeal. As such, the defendant no. 12 along with said appellant also filed an application for condonation of delay bearing Misc. Civil Application No. 41 of 2009. The District Court rejected the said application. Aggrieved thereby, 2 SA 490.2010 the defendant no. 12 has filed the present Second Appeal. 2. Mr. B.S.Kudale, the learned counsel for the appellant submits that the District Court while rejecting the application has taken very hyper technical approach and rejected the application. The applicant had in detailed given the reasons, which precluded him from filing the Appeal within the period of limitation. The learned counsel contends that on 21/8/2009 the applicant got the knowledge of the Judgment and decree when he came to Majalgaon and visited his Advocate. The applicant in fact is resident of remote village. The applicant for his medical treatment was always required to travel to Aurangabad and Parbhani. He has produced the copies of medical prescriptions and hospital bills. These aspects have not been considered. The learned counsel further contends that the expression ‘ sufficient cause ’ should be liberally construed. According to the learned counsel, even the present respondent has filed Appeal against the impugned Judgment and decree passed by the trial Court dismissing part of its claim and the same is also pending. So, no prejudice would be caused if an opportunity is given to the present appellant to prosecute his Appeal by condoning the delay as the said Appeal 3 SA 490.2010 can be heard together. 3. Per contra, Mr. S.J.Salunke, the learned counsel for the respondent vehemently opposes the application on the ground that no sufficient cause has been spelt out. According to the learned counsel, the expression ‘ sufficient cause ’ can not be stretched to such an extent that it would become redundant. The appellant is required to know the progress of the case from time to time and negligence can not be the ground to condone the delay. According to the learned counsel, the Court below has properly appreciated the facts and refused to exercise the discretion in favour of the applicant. 4. In light of the above, the following substantial question of law arises : (i) Whether the grounds stated by the applicant would come within the realm of the expression ‘ sufficient cause ’ ? 5. Admit. 6. With the consent of the learned counsel for the parties, the matter is taken up for final hearing at the stage of admission. 4 SA 490.2010 7. I have heard the learned counsel for the respective parties and perused the record and proceedings. 8. The expression ‘ sufficient cause ’ has to be liberally construed. It is a trite law that when technical considerations and the cause for substantial justice are pitted against each other, the cause for substantial justice shall be sub- served. The appellant would not gain by delay as he is clamped with the order of injunction in respect of one of the suit properties. As such, it can not be said that the delay caused was intentional. More over, the appellant has produced on record the medical prescriptions, medical case papers and the bills to substantiate his contention. The Court could have taken into consideration the said aspect. More over, when the companion Appeal arising out of the same Judgment is pending before the District Court, the present Appeal also could have been heard along with them. It is informed by the learned counsel that the said Appeal is still pending before the District Court which is filed by the present respondent. 9. In light of that and taking into account the aforesaid facts and the ground of illness of the 5 SA 490.2010 appellant, I feel it appropriate to condone the delay. At the same time, the respondent is required to be compensated. 10. In the result, I pass the following order : The impugned order is quashed and set aside. The Misc. Civil Application No. 41 of 2009 is allowed subject to condition that the present appellant pays the costs of Rs. 7,000/- ( Rupees Seven Thousand only ) to the respondent directly or deposit before the District Court within the period of four ( 4 ) weeks from today. If the cost is paid and if the appeal otherwise complies with all other legal requirements, the said Appeal be registered. The District Court shall consider the question of maintainability of Appeal on its own merits. The Second Appeal is accordingly disposed of however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 490.2010