1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4498 OF 1998 Kaluram Saidu Bhival .. Petitioner versus Hanifabi Shaikhk Rashid .. Respondent Mr.D.S.Mhaispurkar for the petitioner. Mr.Vijay Gharat i/by Mr.L.S.Gaikwad for the respondent. CORAM : A.S.OKA, J. DATE : 9th March 2010. JUDGMENT: . Heard learned counsel appearing for the parties. The petitioner has taken an exception to the judgment and order dated 6th August 1998 passed by the learned Additional District Judge by which application for condonation of delay in preferring appeal has been dismissed. 2. In a suit filed by the respondent, a decree was passed against the petitioner on 30th December 1997. On 24th June 1998 the Court Bailiff visited the suit property for execution of the warrant of possession on the basis of the decree. On the very day the petitioner applied for certified copies of the judgment and decree. The copies were made available on the same day and application for condonation of delay was filed on the same day. The District Court stayed the execution of the decree. By the impugned order, the application for condonation of delay has been dismissed. 2 3. The learned counsel appearing for the petitioner submitted that the Appellate Court has committed an error by entering into a question whether the petitioner was served with the suit summons. He submitted that on the basis of the bailiff’s report the Appellate Court came to the conclusion that the summons was refused by the petitioner and therefore he had knowledge of the suit. Relying upon a decision of this Court in the case of Bapurao. 2001 Maharashtra Law Journal 481 he submitted that the report of the bailiff could not have been relied upon as it was not supported by proper affidavit. He submitted that delay was only of few months and in view of averments made in the application for condonation of delay, the Appellate Court ought to have condoned the delay. 4. The learned counsel appearing for the respondent supported the impugned judgment and order. He submitted that the petitioner was all along aware about pendency of the suit and he did not appear in the suit and therefore ex-parte decree was passed. He submitted that there is no explanation for gross delay in approaching the Appellate Court. He submitted that no interference is called for. 5. I have considered the submissions. I have perused the record. The case made out by the petitioner in the application for condonation of delay is that till the Court Bailiff visited the suit premises on 24th June 1998, the petitioner was not aware of the decree passed on 30th December 1997. On the very day i.e 24th June 1998, the petitioner applied for certified copies of 3 the judgment and decree and on the same day, applied for condonation of delay before the District Court. Memorandum of appeal was tendered alongwith application for condonation of delay. The decree was passed on 30th December 1997 and appeal was preferred on 24th June 1998. The issue whether the petitioner was aware of the pendency of the suit could not have been considered while deciding the application for condonation of delay in preferring the appeal. There is a serious doubt about legality and validity of the report of the bailiff which is referred to in the judgment. Moreover, it was not the case made out by the respondent that the petitioner was aware at all relevant times of the decree passed on 30th December 1997. Therefore, there was a sufficient cause made out to condone the delay. 6. Instead of considering the merits of the application for condonation of delay, the learned Additional District Judge has committed an error by considering the question whether the petitioner was served with the suit summons. The said aspect could not have been gone into while deciding application for condonation of delay. The said aspect may be relevant when the appeal is heard on merits. In the facts of the case the delay ought to have been condoned. 7. Hence, the petition must succeed. The petitioner will have to compensate the respondent by paying costs. The amount of costs is quantified at Rs.5,000/-. 8. Hence, I pass the following order: 4 : O R D E R : (a) The impugned judgment and order dated 6th August 1998 is quashed and set aside and Miscellaneous Application No.458 of 1998 is allowed. (b) The petitioner shall pay costs of Rs.5,000/- to the respondent within a period of ten weeks from today. Deposit of the amount of the costs with the Appellate Court will be treated as sufficient compliance. (c) If compliance is not made with a direction regarding payment of costs, impugned order will stand confirmed. (d) If compliance is made, the Appellate Court will register the appeal and will decide the appeal as expeditiously as possible. (e) Rule is made absolute on above terms. (f) It is made clear that no adjudication has been made on the merits of the appeal. (A.S.OKA,J)