1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1045 OF 2011 (Parashram @ Parshya Lalaji Bhujade vs. Smt. Anusaya Chindhuji Wankhede) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S.P. Hedaoo, Advocate for the petitioner. Shri O.D. Kakde, Advocate for the respondent. -------- CORAM : R.M. SAVANT, J. DATED : JUNE 29, 2011 This petition is directed against the order dated 22/11/2010 passed by the learned District Judge-15, Nagpur whereby delay of 115 days in filing the appeal by the respondent herein came to be condoned. The petitioner is the original plaintiff, who had filed Regular Civil Suit No. 383/2003 for declaration and permanent injunction against the respondent herein. The said suit came to be decreed on 20/6/2007. The respondent herein filed an appeal, but since there was delay in filing the same, the respondent filed Miscellaneous Civil Application 2 No. 895/2007 seeking condonation of delay of 115 days in filing the said Appeal. It was the case of the respondent herein that she was sick and bed-ridden from 15/7/2007 till 12/11/2007. The said case of the respondent was countered by the petitioner by filing a reply. The respondent examined herself in support of the said application. The appellate Court on the basis of the certificate issued by one Dr. Bhondey wherein it was stated that the respondent was under his treatment from 15/7/2007 to 12/11/2007 allowed the said application and while allowing the same, imposed costs of rupees four hundred on the respondent. The learned Counsel for the petitioner submits that considering the evidence on record and also considering the fact that the medical certificate has not been proved, which has been relied upon by the appellate Court, no sufficient cause has been made out by the respondent for condonation of delay. True it is that the respondent had not mentioned the ailment from which she was suffering and had also not produced the prescription by which 3 the Doctor had prescribed medicines to her. She has also admitted in her deposition that she was not admitted to any Hospital. However, since the appellate Court has found it fit to exercise discretion in favour of the respondent herein by condoning the delay of 115 days, this Court does not find any reason to differ with the discretion exercised by the appellate Court. In that view of the matter, no case for interference is made out. However, the costs imposed by the appellate Court of rupees four hundred are required to be enhanced. The respondent is directed to pay costs of rupees one thousand five hundred to the petitioner within two weeks from date. The payment of the said costs is a condition precedent. If the costs are not paid within the time stipulated by this order, the benefit of this order would not enure to the respondent and resultantly, the Appeal would not be taken up for consideration. With the aforesaid observations, the writ petition is dismissed. JUDGE khj 4