Ladda1 1caf-401-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 401 OF 2011 IN FIRST APPEAL Stamp NO. 2405 OF 2011 Office Notes, office Memoranda of Coram, appearances, Court's orders or directions and Registrar’s orders Court's or Judge's orders Rajesh Datar, Advocate for the applicants/appellants. Mr Ashutosh Gole, Advocate for respondent No.1. CORAM : RANJIT MORE, J. DATED : 23rd September, 2011. P.C.: 1. Heard Mr Datar, learned counsel for the applicants and Mr Gole learned counsel for respondent No.1. 2. Respondent No.1 was the original plaintiff. The other respondents are the original defendants. Though appearance is filed on behalf of respondent Nos. 2 to 5, they are not represented by their advocate. Even otherwise presence of these respondents is not necessary for disposal of this application. 3. The Civil Application is taken out for condonation of delay of 227 days occurred in filing the above said first appeal. By the judgment and decree impugned in the above first appeal, the suit of respondent No.1 is decreed and she has been granted 1/10th share in the suit property. She Ladda2 2caf-401-11 was also held to be entitled for separate possession of the same. The impugned decree is passed on 15.3.2010. The above first appeal is filed on 27.1.2011. The applicant has made averments in paragraph No.4 of the application that he engaged services of advocate Shri A.K.Kumar. However he was suffering from paralysis since September,2009 and he used to move around with the help of clutches and Jaipur foot and also required support while walking. The applicant used to visit office of their Advocate for making enquiry about the status of the suit and they were kept informed from time to time by the office of the said Advocate that the suit had not come up for hearing then and the applicants would be informed as and when their presence would become necessary. The applicants did not change the Advocate inspite of the fact that he has become handicapped as he was well aware about the facts of the suit. The applicants have further made averments that the health of their Advocate deteriorated further from September,2009 and he could not attend the court regularly. Neither the applicants were aware about the order passed on 30th November,2009. The suit thereafter proceeded without the evidence. 4. It appears that at the stage of the argument Junior Advocate from the office of Advocate A.L.Kumar appeared in the suit. However, in paragraph no.6, the specific averment is made that said Junior Advocate was not authorized by the applicants and the applicants were also not aware about the fact that suit is placed for argument. Further averment is made that even that Junior Advocate did not inform the applicants about the date of hearing of the suit, the fact that he has argued the matter, or the decision of the suit. 5. In short, the applicants submit that because of the ailment of their lawyer, he could not remain present in the court. The applicants also did not remain present as assurance was given by their lawyer that they will be kept informed. The applicants came to know about the impugned decree only when they received notice on 13.12.2010 in M.A.No. 606/2010 taken Ladda3 3caf-401-11 out by the first respondent for execution. Thereafter the certified copy was obtained and present first appeal is filed. 6. The respondent has not filed reply to the civil application. However, Mr Gole opposed the application on the ground that no case is made out for condonation of delay. He submits that the grounds stated in the application are not substantiated by any supporting evidence on record. 7. No hard and fast rule can be laid down in the matter of condonation of delay and a Court should adopt a pragmatic approach and should exercise discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’ the principle of advancing substantial justice is of prime importance and the expression ‘sufficient cause’ should receive a liberal construction. Taking into consideration the above averments, sufficient cause is made out for condonation of delay. The hardship to respondent No.1, if any, can be compensated by directing the applicants to pay cost. The application, therefore, is disposed of by passing the following order :- (a) The delay of 227 days in filing the first appeal is condoned subject to the applicants paying costs to respondent No.1 quantified at Rs.2,500/-. Costs to be paid within a period of two weeks from today. The civil application is accordingly disposed of. (RANJIT MORE, J.)