1 wp3917.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3917 OF 2011 Alka d/o Dashrath Pawar, Age: 29 years, Occ: Service, R/o. Q.6/5, Ramnagar, N-2, Cidco, Aurangabad. ...PETITIONER VERSUS The Additional Commissioner, Aurangabad Division, Aurangabad and another. ...RESPONDENTS ... Mr. Pradeep B. Salunke, Advocate for petitioner. Mr. G.R. Ingole, A.G.P. for respondent No.1. Mr. V.C. Patil, Advocate holding for Mr. U.B. Bondar, Advocate for respondent No.2. ... CORAM: S.S. SHINDE, J. DATE : 24TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel for the petitioner. 2. By the impugned order, the Additional Commissioner, Aurangabad Division, Aurangabad disposed of the appeal bearing No. 2 wp3917.11 DB/Appeal/Cell/49/2009 at the admission stage on the ground that, though there is delay of 65 days in filing the appeal, separate application for condonation of delay was not filed by the appellant. It is further observed in the impugned order that, neither appellant nor his Advocate has taken care of filing a separate application for condonation of delay, though the appeal is pending since 2008. 3. The Counsel for the petitioner would submit that, though there was no separate application for condonation of delay, however, prayer for condonation of delay was incorporated in the appeal itself. Therefore, the Additional Commissioner, Aurangabad Division, Aurangabad should have entertained the said prayer and proceed further in deciding the appeal on merits. 4. On the other hand, learned Counsel for the respondents would submit that, though the appeal is pending since 2008, neither the 3 wp3917.11 appellant nor his Advocate bother to file any separate application for condonation of delay and therefore, impugned order came to be passed and same cannot be faulted with. 5. Upon hearing the Counsel for the parties and upon perusal of the impugned order, it is true that, the appeal is pending since 2008 and further it appears that, no steps have been taken by the petitioner to file separate application for condonation of delay. However, if the prayer for condonation of delay was incorporated in the appeal itself, the concerned Forum should have insisted the appellant to file separate application for condonation of delay. There was delay of 65 days which cannot be said to be an inordinate delay and therefore, in my opinion, the right of the party to pursue the remedy of appeal cannot be defeated by taking a hyper technical view. Therefore, in the facts and circumstances of this case, ends of justice would met, if the impugned order is quashed and set aside and the 4 wp3917.11 petitioner is given opportunity to file the application for condonation of delay. Accordingly, the impugned order is set aside. 6. The petitioner is given opportunity to file application for condonation of delay in Appeal No.DB/Appeal/Cell/49/2009.After considering the application for condonation of delay in the said appeal, the Additional Commissioner, Aurangabad Division, Aurangabad will decide the appeal on merits. Since considerable time has been lapsed from filing the appeal, it is desirable that, the petitioner should have file such application for condonation of delay within two weeks from today, failing which, the order dated 13-12-2010 passed by the Additional Commissioner, Aurangabad Division, Aurangabad will remain in force. Upon filing such application within 15 days, the Additional Commissioner, Aurangabad Division, Aurangabad to consider the said application on its own merits and decide the same and then proceed in the appeal on merits. 5 wp3917.11 7. Writ Petition is allowed to above extent and stands disposed of. [S.S. SHINDE, J.] sut/NOV11