1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 126 OF 2007 WITH CIVIL APPLICAIOTN NO. 10112 OF 2007 AND CIVIL APPLICATION NO. 4706 of 2008 Narayan s/o Tulshiram (deceased through Legal heirs Anusaya w/o Narayan Pawade and others ...Appellants Versus Satyanarayan s/o Jagannath Kabra and others ...Respondents ..... Mr. M.D. Narwadkar, advocate for the appellants Mr. Rajesh Pardeshi, advocate h/f Mr. A.P. Bhandari, advocate for respondent 7C and 7E Mr. R.R. Mantri, advocate for respondent No.1, 3A to 3C ..... CORAM: S. S. SHINDE, J. DATED: 21ST SEPTEMBER, 2010 PER COURT:- 1 This Appeal from Order takes exception to the order dated 17.10.2007, passed by the learned District Judge, Nanded in Misc. Civil Application (RJE) No. 182 of 2001, which was filed for condonation of delay for filing application for restoration of RCA No. 68 of 1995. 2 2 The appellants herein filed RCA No. 68 of 1995 before the District Judge at Nanded against the respondents herein challenging the judgment and order passed by the 4th Joint C.J.S.D. in Special Civil Suit No. 36 of 1976. This appeal was posted on board on 22.7.2997 before the District Judge at Nanded. However, the same came to be dismissed for want of prosecution i.e. for non payment of process fees. 3 The appellants herein filed restoration petition in R.C.A. No. 68 of 1995. Since there was delay in filing restoration petition, the appellants herein filed application under Section 5 of the Limitation Act for condonation of delay of 4 years and 138 days caused to fililing restoration petition against the dismissal of appeal. However, the said application for condonation of delay came to be rejected on 17.10.2007. Hence, the present appeal from order is filed by the appellants. 4 Learned counsel appearing for the appellants submitted that lower appellate Court ought to have condoned the delay in the interest of justice, since the right of appeal of the appellants to challenge the judgment and decree passed in the civil suit is substantial right and the same should not get defeated merely on the ground of delay. Learned counsel further invited my attention to the grounds taken in the appeal memo and submitted that in the interest of justice, application for 3 condonation of delay ought to have been allowed by the lower court. Learned counsel also invited my attention to the other documents which are placed on record in support of his contention. 5 On the other hand, learned counsel appearing for the respondents submitted that the respondents herein who are original land owners have succeeded in the suit after a period of 34 years. The decree is drawn by the Civil Court in terms of the judgment and order passed by the High Court and accordingly shares are given to the respondents tenants. Learned counsel would submit that the district Court taking into consideration inordinate delay of four years and 138 days and in view of the fact that no sufficient cause was disclosed before the court below to condone the delay, has rightly rejected the application for condonation of delay and no interference is warranted at the hands of this Court. 6 I have heard learned counsel appearing for the appellants and the respondents at length. I have perused the grounds taken in the appeal memo as well as the annexures to appeal memo and the impugned order passed by the District Court Nanded in Misc. Civil Application (RJE) 182 of 2001. In para 3 and 4 of the said order, the Court recorded the statement of the counsel appearing for respondent Nos. 1 to 8 and 9A. The learned Judge framed two points for its determination/consideration and by reasoned order has rejected the 4 application preferred by the appellants herein for condonation of delay. Learned Judge has referred to the evidence of applicant Tukaram in para 11. In para 12 the court has recorded that the applicant Tukaram admitted that joint family lands were looked after by all joint family members i.e. Narayan and Hari. It is further recorded that Tukaram came to know about the dispute at the time of partition of joint family which took place in the year 1997-98. He further admitted that there was no dispute between him and his uncle. The Court has recoded the findings that admission of applicant Tukaram creates doubt about the contention of the applicant that only Hari was looking after the court proceeding and agricultural land. The court has further referred to the evidence of respondent Satyanarayan in para 12 of the judgment. It is recorded that evidence of Satyanarayan reflected that he has filed Regular Execution Petition i.e. R.D. No. 22 of 1995 before the executing Court and all applicants appeared in that execution proceeding and after passing of order of possession warrant this false application for restoration of appeal came to be filed. It is further observed by the Court that the evidence of respondent Satyanarayan remained un-shattered during the course of cross examination. In para 14, the Court has recorded that evidence of applicant Tukaram does not inspire confidence and applicants have failed to establish that there were disputes between their family members for 4 years and only applicant No.2 Hari was looking after the court mattes and as such they came to know about the dismissal of appeal when 5 respondent Satyanarayan has been to disputed field. It is further observed by the Court that inordinate delay of four years and 138 days is not explained by the applicants satisfactorily. Subsequently, evidence adduced by the applicants is unbelievable and there is gross negligence on the part of the applicant to file application for certified copy of order of dismissal passed in that appeal and to comply with the said application. There is also inordinate delay in preferring the application for condonation of delay, after getting certificate copy of the order of dismissal of appeal. The learned Judge has concluded in para 14 that no sufficient cause has been shown to condone the delay. Therefore, the said application came to be rejected. 7 I have carefully perused the grounds taken in the appeal memo. I find that none of the grounds in the appeal warrants to take different view as taken by the District Court. It is stated in para 4 that the appellants engaged advocate and all kinds of instructions were given to him. It is not specifically stated that on which date they had been to their advocate and how much amount was given to the advocate towards his fees and for expenses. Ground No.4 is vague and no reliance can be placed on the said ground. Ground No.7 taken in the appeal memo refers to the order passed by the High Court and it is stated that the appellant was declared as protected tenant to the extent of 17 acres 9 Gunthas from survey No. 152 and 13 acres 15 gunthas from survey No. 153 on eastern side. In ground No.8 again 6 general ground is taken. On careful perusal of the grounds taken in appeal memo from 1 to 10 none of the grounds has been specifically worded and there are no material particulars are mentioned so as to explain inordinate delay of four years and 138 days. 8 Taking into consideration the grounds in the appeal memo and also the impugned judgment and order passed by the District Court, there is no manner of doubt that the appellants herein have utterly failed to disclose sufficient cause to condone the inordinate delay of four years and 138 days in filing appeal. It cannot be forgotten that the respondents in this appeal from order are original land owners and as contended by the counsel for the respondents, they are fighting litigation from last 34 years and decree drawn by the Court below is in accordance with the directions of this Court. It is true that the length of delay is not material and what requires is the sufficient cause to be disclosed in the application for condonation of delay. On perusal of the application which was filed for condonation of delay in filing restoration petition and from discussion in the impugned order, I find that the appellants have totally failed to bring on record the sufficient cause so as to condone the inordinate delay. 9 Viewed from any angle, I find that no case is made out to entertain this Appeal from Order. Therefore, Appeal from order fails and the same is dismissed. Interim relief, if any, stands vacated. 7 10 In view of dismissal of appeal from order, nothing remains to be adjudicated in the civil applications and thus civil application No. 10112 of 2007 and civil application no. 4706 of 2008 stand disposed of. *****