Ca 417.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.417/2010 IN SECOND APPEAL ST.NO. 3464/2010 Najir J.Patil & Ors. Applicants Vs. Aslam A.Patil & Ors. Respondents Mr.Dilip Bodake for Applicant Ms.Tejaswini Kadam h/f Mr.R.S.Kate for Res.1 & 2 CORAM-G.S.GODBOLE,J. DATE-28TH SEPTEMBER,2011 P.C. . Heard Mr.Bodke appearing for the Applicant and Ms.Kadam appearing for Respondent Nos.1 and 2. 2 Affidavits in Reply has been filed by the Respondents and the Affidavits in Rejoinder has been filed by the Applicants. There is delay of 2 years and 58 days in filing the Second Appeal. 3 Mr.Bodke relied upon the averments in Paragraphs 7 to 9 of the Civil Application and also relied upon certificates issued by the different Alopathic doctors including the certificate from Poona Hospital, Ca 417.10 2 which indicate that both the applicants were undergoing treatment. In the Affidavit in Rejoinder, it is stated by Applicant no.1 Najir that, Applicant no. 2 Bashir had executed a Power of Attorney in his favour on account of ill- health. 4 Learned Counsel for the Respondents strongly opposed the Application by pointing out that after passing of the impugned Judgment, a caveat was filed and the copy of the caveat had been served on both the Applicants. She also pointed out that the Application is verified by Applicant no.2, Bashir before the Civil Court at Vai and hence, the theory of Applicant no.1 having been appointed as a Constituted Attorney of Applicant no.2 which is given as a reason for the delay should not be accepted. It was also submitted that if Applicant no.1 had suffered from paralytic stroke, and if with that stroke he reached Vai Court for affirmation, there is no justification why the Second Appeal could not be filed within limitation, particularly when the Appeal Memo does not require any affirmation. She also pointed out that the delay is enormous of more than two years and has not been explained by giving the detailed explanation of entire period of delay. Mr. Bodke in rejoinder submitted that there is nothing to indicate that the Applicants had attended the date in Vai Court or Satara Court personally and only on account of the impugned Ca 417.10 3 decrees since the Application for delay and Rejoinder Affidavits had to be sworn, with great difficulty they had travelled to the Court at Vai. 5 I have considered the submissions. It is no doubt true that the delay is substantial. It is also true that every day’s delay has not been explained. However, that is not the requirement of law. The fact that Applicant no.2 had executed a Power of Attorney in favour of Applicant no.1. it is evident from the copy of that document which was executed on 20th April, 2001.In that the age of Applicant no.1 was shown as 68 years and Applicant no.2 and 58 years. Thus, at the time of the impugned Judgment and Order they both were of advanced age. Medical Certificates from the doctors and hospital indicate the nature of various illnesses like stroke, diabetics, etc.. The Applicants are required to be given a chance to agitate their case on merits. The prejudice caused to the Respondents will have to be compensated by awarding appropriate costs which are quantified at Rs.5,000/-. 6 The Civil Application is, therefore, allowed subject to payment of costs of Rs.5,000/- to be paid to the Respondents through their Advocate within three weeks from today. The payment of costs by cheque drawn in favour of Respondent no.1 and tender of the said cheque to the Ca 417.10 4 Advocate of the Respondent or alternatively deposit of the amount of costs in this Court would constitute sufficient compliance. If, the costs are not paid / deposited as aforesaid, this order will stand recalled and the Civil Application will stand dismissed without further reference to the Court. 7 If the costs are paid/deposited within three weeks, list this Second Appeal after three weeks for Admission. G.S.GODBOLE,J.