1 S.A. 676/2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 676 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.P. Hiwarekar, Advocate for appellant. Mr. M.M.Patil (Beedkar), Advocate for respondent. ....................... CORAM : S.V. GANGAPURWALA, J. DATE : 01/12/2010 PER COURT : 1. The present respondent had filed Suit for possession. The Trial Court decreed the Suit. The defendant preferred Appeal. There was delay in filing the Appeal. As such, the defendant along with appeal memo, filed an application for condonation of delay, which was registered as Misc. Civil Application No. 485 of 2001. The delay was of 6 months and 13 days. The lower appellate Court was not convinced with the reasons given in the Appeal and came to the conclusion that the cause stated by the applicant does not come within the ambit and purview of expression “ sufficient cause ”, as such rejected the application. The defendant has assailed the said Order in the 2 S.A. 676/2010 present Second Appeal. 2. Mr. Hiwarekar, the learned counsel for the appellant submitted that the delay caused in filing the present Appeal before the lower appellate Court was not intentional one. In fact, the present appellant was not aware of the Judgment being passed. The matter proceeded without Written Statement and immediately after the appellant got the knowledge about the Judgment and decree, had taken steps for filing the Appeal. It is in such circumstances the delay has been caused. 3. Per contra, Mr. Patil, the learned counsel for the respondent submitted that the delay has been caused by the appellant intentionally as he was enjoying the suit property. The appellant was to gain by causing delay. The delay caused is not bonafide. The appellant was negligent in prosecuting the matter and the negligence can not be construed as “ sufficient cause ”. The learned counsel further submitted that the appellant initially had chosen wrong remedy, which was also not in good faith. The conduct of the appellant dis- entitles him from the discretionary relief. 4. In the facts and circumstances of the case, following substantial question of law arises : (i) Whether the reasons stated by the appellant in the application for condonation of delay comes within the realm of expression “ sufficient cause ” ? 3 S.A. 676/2010 5. Admit. 6. With the consent of the learned counsel for the respective parties, the present Appeal is taken up for final hearing. 7. The rights of the appellant in an immovable property are involved in the present litigation. The record shows that the matter proceeded ‘ without W.S. ’, interalia the plaintiff was not aware of the Judgment and decree passed by the Courts below. When the appellant is facing the decree of eviction, it can not be said that the appellant would gain by delay. 8. It is a trite law that when procedural technicalities and substantial justice are pitted against each other, the cause for substantial justice shall prevail. The expression “ sufficient cause ” has to be liberally construed. The appellant has stated the reasons regarding the communication gap between the Advocate and the appellant. 9. Taking into account the above conspectus of the matter, the reasons stated would come within the purview of expression “ sufficient cause ” and the delay deserves to be condoned. However, the respondent had to suffer hardship because of the proceedings and is required to be compensated by costs. 10. In the result, the Appeal is allowed. The 4 S.A. 676/2010 impugned Order dated 2/7/2002 passed by the 2nd Ad-hoc District Judge, Beed in Misc. Civil Application No. 485 of 2001 is quashed and set aside and the said application is allowed subject to payment of costs of Rs. 5,000/- ( Rupees Five Thousand only ) by the present appellant to the respondent within the period of four weeks from today. The parties shall appear before the lower appellate Court on 21/12/2010. [ S.V. GANGAPURWALA ] JUDGE knp/SA 676.2010