1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6905 OF 2009 Ratilal Bhagwan Chafale ........ Petitioner versus Barrister Mahadev Yawalkar ........Respondent. Mr. A.B. Tajane adv. for the Petitioner Mr. G.N. Salunkhe i/b. Umesh Kurund adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 14th December, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 2. This petition is directed against an order passed by the first appellate court rejecting the application moved by the petitioner seeking condonation of delay in filing the appeal. 3. The respondent is the original plaintiff who instituted a suit for specific performance of an agreement executed by the defendant agreeing to sell the land admeasuring two acres and one gunta to the plaintiff for a total consideration of Rs. 5000/- only out of which a sum of Rs. 3000/- only was allegedly paid by way of earnest money. 2 4. The present petitioner did file the written statement and contended that the suit transaction is a money lending transaction. The plaintiff is a money lender who, taking advantage of the poverty and financial hardship of the petitioner, paid a sum of Rs. 3000/- and with a view to secure the said payment an agreement was reduced into writing where under the petitioner is shown to be ready and willing to sell the valuable land admeasuring 2 acres and one gunta for a total consideration of Rs. 5000/- only. It is stated that the value of land is much more i.e. 15 to 20 thousand per acre. Thus the suit was contested. However an ex-parte decree came to be passed as the advocate for the present petitioner retired from the proceedings and passed a pursis to that effect. There had been delay of more than two years and hence along with the appeal, an application for condonation of delay was filed, the rejection of which has given raise to the present petition. The learned counsel for the petitioner has submitted that by applying a wrong test the application has been rejected. The submission is that the court while considering the condonation of delay application has to be liberal and need to take a pragmatic view of the matter rather than taking a pedantic approach. It is settled position of law that every days delay is not required to be explained. The first appellate court being of the view that not only every days delay has to be explained but every hours delay need to be explained has rejected the application. The court has observed thus: “While seeking relief of condonation of delay, it was 3 necessary for the petitioner to explain the delay day to day and hour to hour but in the present case,............” 4. The legal premise on which the first appellate court has proceeded to consider the application for condonation of delay is wholly incorrect and thus the impugned order suffers from patent illegality requiring interference of this court in exercise of writ jurisdiction. I am in agreement with the submission made by the learned counsel for the petitioner that valuable immovable property is at stake. On the own showing of the respondent only a sum of Rs. 3000/- has been paid by way of earnest money and the total consideration of the land admeasuring two acres and one gunta is shown to be Rs. 5000/- only . Taking over all view of the matter, I deem it appropriate to condone the delay. It will not be out of place to mention that this court issued notice in the matter vide order dated 15-9-2009 subject to the condition that the petitioner deposits a sum of Rs. 7500/- by way of costs. I am informed that a cheque for the said amount has already been deposited in the court. It would be in furtherance of cause of justice to allow the present petition and permit the petitioner to contest the appeal on merit. Hence the petition is allowed. Impugned order passed by the first appellate court dated 23-7-1980 is quashed and set aside. The application filed by the petitioner in the first appeal seeking condonation of delay is allowed and disposed of. The first appellate court shall proceed to decide the appeal on merit as expeditiously as possible and preferably within a period of four months from today. I am 4 informed that the cheque drawn in the name of the respondent has been deposited in the Registry. The said cheque be handed over to the respondent. Rule made absolute in the above terms. (A. P. Deshpande, J.)