1 WP-2953-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 2953 OF 2010 Sou. Mumtaj Akbar Sayyad ) Age: Adult, Occ: Agriculturist, ) R/o. Jaysingpur, Tal: Shirol, ) Dist. Kolhapur. ).. Petitioner/Orig.Defendant Vs. 1) Shri Raghunandan Sitaram Pise ) Age: 30 yrs. Occ: Tailoring, ) R/o. Jaysingpur, Tal: Shirol, ) Dist. Kolhapur. ) 2) Smt. Roshanbi Allabaksha Shaikh ) Age: 65 yrs, occ: Household, ) R/o. Galli No. Jaysinpur, ) Tal: Shirol, Dist. Kolhapur. )..Respondents (Org.Plaintiff. & defendant) Mr. Manoj A. Patil,Advocate, for the petitioner. Mr. Vijay Killedar,Advocate for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2 WP-2953-10.sxw 2. The plaintiff-respondent filed Regular Civil Suit No.214/2002 for recovery of money. The suit was decreed on 4.1.2007. On 19.1.2007, the defendant filed an application for certified copy of the Judgment and decree which she got on 20.1.2007. On 14.2.2007, she filed an appeal challenging the said judgment and decree. As there was delay of about 9 days in filing the appeal, it was necessary to file an application for condonation of delay. That application was not filed along with the appeal. On 27.4.2007, application for codonation of delay was filed under Sec. 5 of the Limitation Act. It was explained that from 1.2.2007 to 15.2.2007, the defendant was not keeping good health as she was suffering from dysentery etc. The application was mainly opposed on the ground that delay from 15.2.2007 to 27.4.2007 was not explained. The learned appellate court rejected the application with costs. Hence, the defendant has filed the present writ petition. 3. Admittedly, excluding the period of two days in filing the certified copy, there was delay of 9 days in filing the appeal and that delay was explained in the application, which was subsequently filed. It is true that the appeal should have been accompanied with an application for condonation of delay. This procedural requirements are not generally known to the litigants. They rely on advocates. Unfortunately, it appears that the advocate was not aware about this 3 WP-2953-10.sxw requirement and later on he came to know that it was necessary to seek extension of time as required under Sec. 5 of the limitations Act, he moved an application on 27.4.2007. From the record, it appears that there was no dispute about the explanation given by the defendant-appellant for the delay in filing the appeal. The main objection was about the delay from 15.2.2007 to 27.4.2007 when the application was in fact made. This was not correct. What was required to be explained was the delay in filing the appeal. The Appeal was actually filed on 14.2.2007 and th delay was explained. Delay in filing the application for condonation of delay was possibly because of the ignorance of the Advocate and in fact that was not necessary to be explained. The same argument was advanced by the learned Counsel for the plaintiff-respondent before this Court also. I am not convinced with the same. As the delay of 9 days in filing the appeal was properly explained, the application should have been allowed and it could not be rejected merely because the application was filed late, though the appeal was actually filed on 14.2.2007. 4. For the aforesaid reasons, the Writ Petition is allowed. The impugned order is set aside. The delay in filing the appeal is hereby condoned. The district Court shall expedite the hearing of the appeal and dispose of the same as early as possible. 4 WP-2953-10.sxw Rule made absolute accordingly. (J.H.BHATIA,J.)