1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 7499 OF 2005 WITH CIVIL APPLICATION NO. 7498 OF 2005 Fasiuddin s/o. Amiruddin ....Applicant. Versus Syed Gayasuddin s/o. Syed Sirajuddin & others. ...Respondents. Shri. S.V. Gangapurwala, Advocate for applicant. Shri. Y.M. Khader, Advocate h/f. Shri. K.G. Khader, Advocate for respondent Nos. 1 to 4. Shri.R.D.Deshpande, Advocate for respondent Nos. 7 and 9. CORAM : P.R. BORKAR, J. DATE : 23rd JUNE, 2009 PER COURT : 1. Heard Shri. S.V. Gangapurwala, Advocate for applicant, Shri. Y.M. Khader, Advocate holding for Shri. K.G. Khader, Advocate for respondent Nos. 1 to 4 and Shri.R.D.Deshpande, Advocate for respondent Nos. 7 and 9. 2 2. This is an application for condonation of day of 109 days in filing the second appeal. It is stated in para No. 1 of the application that appellant No. 2 Syed Muzaffaruddin S/o. Sayed Amiruddin (respondent No. 7 in this application) was looking after the case and the present applicant had told Syad Muzaffaruddin that he should file an appeal in the first week of February 2005, Syed Muzaffaruddin said that he would not file the appeal and therefore, the applicant was surprised by his change of stand. Thereafter, he approached the advocate and they made application for certified copies on 14.2.2005 and the certified copies were received on 16.5.2005 and then there was vacation to Courts from 7th of May 2005 to 5th of June 2005 and the application was filed on 13 June 2005. 3. It may be noted that the judgment was pronounced by Extra Joint District Judge, Aurangabad on 27.8.2004. So only after six months Syed Muzaffaruddin has stated that he would not file the appeal. In fact, the period of appeal is already over and atleast he should apply for certified copies. 4. Pending this application, the application had to be dismissed against respondent Nos. 6,8,10, 11 and 14 for non prosecution as per the order of this Court dated 14.8.2008. No steps were taken after 14.8.2008 for recalling the said order. The original suit was for partition and separate possession. In view of dismissal of this application against so 3 many respondents, the application would not be tenable and consequently, this only shows negligence of the applicant. In this view of the matter, the reasons given in application are not sufficient to condone the delay. Hence, the application is rejected. 5. In view of dismissal of the application No. 7499/2005, the civil application No. 7498/2005 does not survive and dispose of accordingly. [ P.R. BORKAR ] Judge ssc/ca7048.05