1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.204 OF 2009 Narendra Babarao Kanchankoti .. Applicant Versus Krishna Vithal Padalkar .. Respondent Mr.V.B.Rajure for applicant Ms.Jagruti Rebello i/b. Rahul Kulkarni for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 27th April 2010. P.C.: 1] Heard Mr.Rajure on behalf of applicant. The applicant is aggrieved by the fact that the lower appellate court condoned the delay of 727 days in filing of regular Civil Appeal challenging decree for possession of the suit premises passed in favour of the applicant. The suit was a joint suit filed by the petitioner and deceased – respondent No.3, being RCS No. 525 of 1999 for possession of the suit premises which is a shop at Kolhapur. 2] It was the case of the applicant that the first defendant agreed to vacate the premises after the property was purchased by the petitioner – 2 applicant. However, he put original second defendant in possession by creating sub-tenancy. In these circumstances and on several grounds, including the bonafide and reasonable requirement of the landlord that the suit was filed. It was decreed on 3rd November 2004 and an application for execution was filed being Regular Darkhast No.384 of 2005. After duly filing his written statement in the proceedings and not participating further, only when the execution application was filed that the first respondent original defendant No.2 thought of filing a regular civil appeal. He, thereafter, applied for condonation of delay of 727 days which has been condoned. The discretion is exercised not in accordance with law. The court below has accepted an explanation for the delay which is not even put forward by the respondent No.1 – original defendant No.2 appellant. For this reason, the order under challenge suffers from an error apparent and perversity and should be set aside. 3] The miscellaneous application for condonation of delay bears No. 288 of 2006. The record shows that it was filed on 6th December 2006. Thereafter, the application was contested and it has been disposed of by the impugned order in the year 2009. 3 4] I, therefore, suggested to Mr.Rajure that if the applicant is senior citizen and desires to enjoy fruits of the decree the lower appellate court could be directed to dispose of the pending civil appeal as expeditiously as possible. More so, after precious time of one year has lapsed from the date of condonation of delay. 5] However, Mr.Rajure submits that the applicant is aggrieved by the fact that the reasons for condonation of delay are nowhere to be found in the pleadings and a case has been made out for the said relief by the Court below which was impermissible in law. 6] I have perused the order under challenge. The second defendant – respondent No.1 appellant before the lower appellate court had stated in his application that the suit was filed in the trial court and notice/ summons was received by both viz., original defendant No.2 and the respondent No.3 before the lower appellate court. Respondent No.3 was the elder brother and was confined to the house being jobless and not doing any work, he did not attend the court regularly and in collusion with respondent Nos. 1 and 2 to the appeal, the matter came to be decided. It is in such circumstances, the delay has occurred. 4 7] This was denied by the applicant – petitioner. 8] The lower appellate court in para 10 of the order under challenge has referred to the original record of the suit and found from a perusal thereof that there was joint vakalatnama filed on behalf of defendants to the suit. Thereafter, another Advocate came on record and the Vakalatnama was only on behalf of original defendant No.1. There is no signature of the original defendant No.2 – first respondent to this revision, on the vakalatnama. Further, the procedural aspects that have been noted with regard to the discharge of an advocate and no notice of the withdrawal of the vakalatnama to the client viz., first respondent appellant before the lower appellate court, are germane grounds for condoning the delay. Ultimately, procedural provisions aid in rendering justice and not denying it. If the record indicates that the original appellant had no notice of the proceedings and they were conducted in his absence, then, surely, he cannot be held to be responsible for the delay. Ultimately, he has set out the reason that when the execution proceedings were underway, he became aware of the fact of the suit being decreed. 5 9] For all these reasons I am unable to hold that the order of the lower appellate court suffers from any error of jurisdiction or the discretion exercised has resulted in manifest injustice. Consequently, the revision fails and it is accordingly dismissed. No costs. 10] However, the lower appellate court should endeavour and dispose of the pending appeal as expeditiously as possible and in any event within a period of four months from the date of receipt of copy of this order. (S.C.DHARMADHIKARI, J)