1 sa224.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.224 OF 2010 WITH CIVIL APPLICATION NO.4592 OF 2010 Syed Ejlal s/o Syed Moinuddin (died) through his legal heirs : Smt. Sultanabegum w/o Syed Ejlal, Age: 56 years, Occ: Service, R/o. Hudco Colony, Parbhani, Tq. & Dist. Parbhani and others. ...APPELLANTS VERSUS Fahemunisa Begum w/o. Haji Moinuddin, Age: 76 years, Occ: Household, R/o. In front of Zilla Parishad, Parbhani, at present C/o. Mahammad Mustafa, behind Inayat Nagar, near Church, Darga Road, Parbhani and others. ...RESPONDENTS ... Mr. H.I. Pathan, Advocate for appellants - applicants. Mr. D.R. Bhadekar, Advocate for respondent No.1. ... CORAM: S.S. SHINDE, J. DATE : 17TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the appellants. 2 sa224.10 Present second appeal is filed challenging the impugned order dated 13-01-2010 below Exhibit-1 in Civil M.A.(RJE) No. 25 of 2009 passed by the Principal District Judge, Parbhani. 2. Learned Counsel appearing for the appellants invited my attention to the averments in the application which was filed for condonation of delay before the lower appellate Court and also deposition of the appellant which is at Page-34 of the compilation of the second appeal and submitted that, during the pendency of the suit, Advocate who was engaged on behalf of the appellants, did not prosecute the suit on their behalf properly, the appellants were not intimated the date of recording the evidence, even the plaintiff was not cross examined by the Advocate of the appellants. Though the judgment and order is passed by the trial Court as back as on 24-10-2007, there was no communication by the Advocate that such judgment is delivered by the trial Court. The appellants came to know about 3 sa224.10 the said judgment by the trial Court only when they received notice from the Executing Court and thereafter, immediately they have taken steps to file the appeal alongwith the application for condonation of delay. The Counsel for the appellants would further submit that, the judgment on which reliance has been placed by the lower Appellate Court is wholly misplaced in the facts of this case. Therefore, according to the Counsel for the appellants, right of the appellants to prosecute the appeal is lost because of the rejection of the application for condonation of delay by the lower appellate Court, and therefore, this Court may allow this second appeal. Learned Counsel invited my attention to the grounds and substantial questions of law incorporated in the memorandum of second appeal and submitted that, the second appeal may be allowed. 3. Learned Counsel appearing for the respondent i.e. original plaintiff would submit that, the appellants were aware about the pendency 4 sa224.10 of the suit. They were diligently prosecuting the another suit which was previously filed by the appellants. It is further contended that, in the compromise arrived between the parties in the earlier suit, names of the plaintiffs were deleted and that gave rise to file another suit against the appellants. The appellants are in possession of the suit property. The appellants are relatives of the plaintiffs and therefore, it cannot be said that, the appellants were not aware about what happening during the pendency of the suit and also there is no proper explanation offered by the appellants after 24-10-2007 till filing of the appeal before the lower appellate Court. Therefore, according to the Counsel for the respondent, the view taken by the lower appellate Court rejecting the application for condonation of delay, cannot be said to be unreasonable or perverse and therefore, this Court may not interfere in the second appeal. 4. Upon hearing the Counsel for the parties, 5 sa224.10 following substantial question of law will fall for consideration. "Whether the order passed by the lower appellate Court rejecting the application for condonation of delay filed by the appellants is perverse and takes away the right of appeal of the appellants in spite of sufficient cause disclosed in the application? 5. I have carefully perused the grounds taken in the appeal memo, annexures thereto, impugned judgment and order passed by the lower appellate Court and heard the learned Counsel for the appellants and learned Counsel for the respondents at length. 6. In the impugned order in para-3, the lower appellate Court has placed reliance upon the reported judgment of this Court in the case of Sow. Kamalbai w/o Narasaiyya Shrimals and another vs. Ganpat s/o Vithalrao Gavare reported in, 6 sa224.10 2007(1) B.C.J. 612 and in particular para-9 of the said judgment. This Court has taken a view in the said judgment that, litigants are required to be vigilant themselves and they cannot blame their Advocate for not establishing the communication with them. Rather they should have established the communication with the Lawyer. . In the present case, on perusal of the application filed by the appellants, the appellants have made endeavour to show that their Advocate did not communicate the date of hearing/recording the evidence in the suit. It is also further contended that, even Advocate did not cross examine the plaintiff and ultimately, the judgment and decree is passed by the trial Court on 24-10-2007. In this respect, it is to be observed that, so far merits of the matter is concerned, that is not the matter to be considered at the time of considering the application for condonation of delay. The appellants wish to challenge the judgment and order dated 24-10-2007 7 sa224.10 passed by the trial Court. Therefore, they are bound to explain the delay caused in filing the first appeal before the lower appellate Court from 24-10-2007 till filing of the said appeal. 7. From careful perusal of the application for condonation of delay and also other documents placed on record, the contention of the appellants is that their Advocate did not communicate about pronouncement of the judgment dated 24-10-2007 by the trial Court. They came to know about such judgment when they received notice from the Executing Court. Therefore, the delay has been caused in filing the appeal. An attempt of the Counsel for the appellants to suggest that during the aforesaid period, brother of the appellants residing at Parbhani died and therefore, the appellants could not take steps. However, from the perusal of the contents of the application, nowhere such ground is taken. Merely because that ground is stated in the oral deposition would not suffice the purpose unless 8 sa224.10 pleadings to that effect are traceable in the application. Therefore, such statement without foundation in the application is rightly not considered/rejected by the lower appellate Court. 8. The Hon'ble Supreme Court in the case of P.K.Ram Chandran vs. State of Kerala [(1997) 7 SCC 556] held, Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute so prescribed and the Courts have no power to extend the period of limitation on equitable grounds. 9. In the facts of this case, it will have to be held that the appellants have utterly failed to offer the explanation for delay in filing in the appeal from the pronouncement of judgment by the trial Court i.e. 24-10-2007 till filing the appeal alongwith the application for condonation of delay. There was inordinate delay of 482 days in filing the appeal and the said delay has not been properly explained. Only contention which is 9 sa224.10 raised by the appellants is that, about pronouncement of the judgment of the trial Court, there is no communication by their Lawyer and they came to know about such pronouncement of judgment by the trial Court only when they received notice in execution proceedings. 10. In my considered opinion, though the length of delay is not only sole factor while considering the application for condonation of delay, however, in the facts and circumstances of this case, and in absence of any sufficient cause disclosed in the application for condonation of delay which was filed by the appellants herein before the lower appellate Court, the view taken by the lower appellate Court cannot be said to be perverse or unreasonable. That apart, it is admitted position that the possession of the suit property is with the appellants and there is every reason to hold that the delay is intentional. The appellants retained their possession even after expiry of the period of limitation for filing the 10 sa224.10 appeal. 11. Therefore, for the reasons aforesaid, I do not find any substance in the second appeal. The view taken by the lower appellate Court is reasonable and in consonance with the evidence brought on record. The Second Appeal is devoid of any merits, same stands dismissed. Consequently, the Civil Application stands rejected. . Interim relief stands vacated. [S.S. SHINDE, J.] sut/DEC11