1 sa 535.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 535 OF 2010 1. Smt. Hirabai Shankarrao Patil, Age : 64 Years, Occu. : Household, R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 2. Uttamrao Vitthalrao Patil, Age : 59 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. .. .. Appellants Versus 1. Vinayak Kisan Mule, Age : 64 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 2. Ramrao Panditrao Patil, Age : 64 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 3. Vishwasrao Bajirao Patil, Age : 55 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 2 sa 535.10 4. Dnyanoba Bapurao Patil, Age : 61 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 5. Madhav Narayan Pathak, Age : 67 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 6. Jagnnath Kondiba Ghube, Age : 67 Years, Occu. : Agril., R/o Wakdi, Tq. Paranda, Dist. Osmanabad. 7. The Assistant Charity Commissioner, Samarth Nagar, Osmanabad. 8. Charity Commissioner, Dharmaday Bhavan, Warali, Mumbai. .. .. Respondents Shri R. N. Dhorde, Advocate h/f Shri V. R. Dhorde, Advocate for Appellants. Shri V. D. Salunke, Advocate for Respondent Nos. 1 to 5. Shri T. S. Lodhe, A.G.P. for Respondent Nos. 7 and 8. CORAM : S. V. GANGAPURWALA, J. DATE : 19TH APRIL, 2011. ORAL JUDGMENT : . The present appellants had filed an application before the 3 sa 535.10 District Court, Osmanabad against the order passed by the Assistant Charity Commissioner, Osmanabad. The same was purportedly filed U/Sec. 72 of the Bombay Public Trust Act (hereinafter referred to as the said Act for the sake of brevity). There was delay in filing the said application. As such, the present appellants also filed an application for condonation of delay which was registered as Miscellaneous Civil Application No. 23/2006. The District Judge - 2, Osmanabad vide its order dated 07.07.2010 rejected the said application for condonation of delay. Aggrieved thereby the present appellants have filed the second appeal. 2. Shri Dhorde, the learned counsel for appellants submits that the District Court while rejecting the application for condonation of delay has taken a very hyper technical approach. The expression sufficient cause has to be liberally construed. The learned counsel contends that when technical considerations and cause for substantial justice are pitted against each other, then the cause for substantial justice should sub-serve. According to the learned counsel it was specific case of the appellants that the notices said to have been issued by the Assistant Charity Commissioner were never served upon them. 4 sa 535.10 The District Court while rejecting the application has only observed that the notices were issued by the Assistant Charity Commissioner, but has not arrived at a definite finding that the same were served. According to the learned counsel, rights of the appellants to participate in the proceedings have been taken away and an opportunity to the appellants is lost to assail the said order of the Assistant Charity Commissioner. 3. Per contra, Shri V. D. Salunke, the learned counsel for respondents submits that the conduct of appellants is required to be considered. That wild allegations are made, no discretion can be exercised in favour of such persons. The Assistant Charity Commissioner has specifically observed that the notices were issued to the present appellants, still they remained absent. It pre-supposes that the notices were served upon them, no separate finding would be necessary in this regard. According to the learned counsel, the expression sufficient cause cannot be stretched to such an extent that the very concept would become redundant. 4. In the light of the above, the following substantial question of law arises. 5 sa 535.10 i) Whether the Court below has properly construed the expression sufficient cause vis-a-vis the grounds stated for condonation of delay ? Admit. 5. Taken up for final hearing with consent of parties. 6. I have heard the learned counsel for parties at length and has also gone through the record. In the present matter, I am only concerned with the application for condonation of delay. It is a trite law that while considering an application for condonation of delay the merits of the matter are not to be looked into. Judiciary is respected not for denying justice on technical grounds, but it can sub serve cause for the substantial justice. 7. The appellants have come with a specific case that they were never served with the notice of the proceedings U/Sec. 50-A of the said Act. The District Court has observed that the Assistant Charity Commissioner had issued notices to the applicants i. e. the appellants, but still they are absent. There is no finding of the District Court that the said notices were served on the present appellants. In the light of the fact that there is no 6 sa 535.10 specific finding that the notices said to have been issued by the Assistant Charity Commissioner are served upon the appellants. One cannot jump to a conclusion that said notices were served inter-alia the appellants had the knowledge of the said proceedings. Without giving a definite finding on the same the District Court could not have delt with the application in such a manner. 8. Moreover, the delay is also not abnormal and the same is of 92 days. It would be in fitness of things to grant the appellants an opportunity to assail the said order of the Assistant Charity Commissioner passed U/Sec. 50-A(1) of the said Act before the District Court U/Sec. 72 of the said Act. At the same time, the respondents deserve to be compensated. In the result I pass the following order : O R D E R i) The impugned order dated 07.07.2010 passed by the District Judge - 2, Osmanabad in Misc. Civil Application No. 23/2006 is quashed and set aside and the said Misc. Civil Application No. 23/2006 is allowed subject to condition that the appellants pay total cost of Rs. 5,000/- (Rs. Five thousand only) to 7 sa 535.10 the respondent Nos. 1 to 5 within a period of four (4) weeks from today. ii) On payment of cost the District Court shall register the said application filed U/Sec. 72, if it otherwise complies with all other legal requirements. iii) The second appeal is accordingly disposed of. iv) Needless to state the appellants can file application seeking necessary order pending appeal, which application the District Court shall consider on its own merits. [ S. V. GANGAPURWALA, J. ] bsb/April 11