1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR C.A.S No.724/2009 in Second Appeal St. No.11472/2009 ( Vijaysingh Gahilot & others ..V/s.. Bhikaji Tappe +1 ) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-== Ms H.N. Jaipurkar Advocate H/f. Mr. S.V. Sohoni Advocate for applellants. Mr. C.A. Joshi, Advocate for respondent no.1. C ORAM : F.M. REIS, J. DATED : 8th January, 2010. This is an application for condonation of delay of 48 days in filing the second appeal. It is the contention of the applicant that the judgment and decree was passed on 2nd of February 2009 and an application for certified copy thereof was ready for delivery on 7th of March 2009. It is further stated that the appellant no.1 1was not keeping well from 4/6/2009 and was under constant medication on account of his illness. The said applicant recovered on 17/7/2009 from the illness which prevented him from traveling so as to instruct his counsel to file the second appeal. After his recovery, he contacted his advocate and thereafter filed the present appeal which resulted in delay of 48 days in filing the second appeal. The said application is supported by an affidavit and medical certificates of the Medical Officer of General Hospital, Akola dated 19/6/2009 and dated 12/7/2009. The respondent no.1 has filed his reply 2 disputing the claim of illness on the part of the said appellant. It is the contention of the respondent that the said appellant is the Headmaster and according to him he was performing his duties as Headmaster during the said period and as such he submits that there is no sufficient cause to condone the delay in filing the second appeal. Heard the learned counsel for the appellants and the respondent no.1 and perused the record. The learned counsel for the applicants submitted that the appellants are entitled to get the delay condoned as they have made out a case of sufficient cause in filing the appeal belatedly. It is further her contention that there are no malafides on the part of the appellants in approaching this Court beyond the time prescribed. It is further her contention that the applicant no.1 was advised not to travel during the period of his illness and as such he was unable to travel from Akola to Nagpur which is at the distance of 280 kilometers to file the second appeal. On the other hand, the learned counsel for the respondent no.1 vehemently opposed the above application for condonation of delay. He submitted that the applicant has filed a false affidavit and had reported for duties during the said period. It is further his contention that the applicants are not entitled for any discretion to be exercised in their favour in view of the fact that they have filed a false affidavit. Considering the facts and circumstances and on perusal of the record, I find that the law is well settled that no party deliberately approaches a Court with delay. In the present case the respondent has not shown that there is any oblique motive on the part of the applicants in deliberately approaching this Court with delay. No malafides have been attributed to the applicants regarding any deliberate delay. There is a strong objection on the part of the learned counsel of respondent no.1 in granting the 3 application for condonation of delay as according to him applicant no.1 had reported for duty during the period of illness. Nevertheless on perusal of the affidavit of applicant no.1 there is no averment therein that the applicant was bed ridden during the said period. Apart from that, the main ground for the delay is on account of the fact that the applicant was advised not to travel during the period of illness and considering the distance of 280 kilometers between Akola and Nagpur there is no reason not to accept the contention of the learned counsel for the applicant no.1 that the applicant was prevented from filing the appeal within the time prescribed on account of some sufficient cause. There is no reason to disbelieve the medical certificates which have been produced by the applicant and which confirm that the applicant no.1 was sick during the said period. Considering the facts and circumstances of the case, I find that the delay in filing the second appeal of 48 days by the appellant is to be condoned subject to the payment of costs of Rs.2000/- to the respondent as condition precedent. In the circumstances, the application for condonation of delay of 48 days in filing the second appeal is allowed subject to the payment of Rs.2,000/- (Rupees Two Thousand Only) to the respondents within two weeks. Application stands disposed of. Second Appeal St No.11472/2009. Fix the matter for admission on 28th of January 2009. JUDGE. Tambaskar.