1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.115 OF 2010 City & Industrial Development Corporation Ltd., Udyog Bhavan, CIDCO, New Aurangabad, through its Administrator at Udyog Bhavan, CIDCO, New Aurangabad. Appellant Versus 1 Manikrao s/o Dagdu Shinde, age: 58 years, Occ: Agril., R/o Mukundwadi, Aurangabad. 2 Gangadhar s/o Dagdu Shinde, age: 48 years, Occ: Agril., R/o Mukundwadi, Aurangabad, through G.P.A. Prakash s/o Digambarrao Ursale, age: 48 years, Occ: Business, R/o Avishkar Colony, Cidco, Aurangabad. Respondents Mr.A.S.Bajaj, advocate for the appellant. Mr.S.V.Gangapurwala, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 16 th February, 2010. ORAL JUDGMENT: 1 This is an appeal by original defendant raising exception to the order dated 02.03.2007, passed by District Judge-5, Aurangabad in M.A.R.J.I. No.212/2006, thereby rejecting application tendered by appellant – original defendant seeking condonation of delay of 112 days occurred in presenting 2 First Appeal. 2 Considering all relevant aspects, the only substantial question of law, that arises for consideration in the appeal, is: Whether defendant has exhibited sufficient cause for exercise of jurisdiction in respect of condoning delay by first appellate Court and whether first appellate court was justified in rejecting application tendered by defendant? 3 Admit. By consent of learned Counsel for respective parties, matter is taken up forthwith for final hearing. 4 Regular Civil Suit No.306/1998 was presented by Respondents – original plaintiffs claiming decree of perpetual injunction in respect of land S.No.65/3 to the extent of 15 gunthas situate at village Mukundwadi, taluka and district Aurangabad. The land is claimed to have been acquired by CIDCO. 5 It is not necessary to go into factual aspects of the matter for the purposes of determination of question involved in the appeal, suffice it to say that suit presented by original plaintiffs was decreed by the trial Court on 17.02.2006. Appellant – original defendant presented appeal raising exception to the judgment and decree passed by the trial Court. However, same was tendered late by 112 days. An application was, therefore, tendered by original defendant – appellant herein seeking condonation of delay of 112 days occurred in presenting the appeal. 6 It is stated in the application that office at Aurangabad had to 3 seek permission from Head office situate at Bombay and in securing appropriate guidance and permission from Head Office, some time was consumed. The delay, that had occurred, is not intentional and defendant is not benefitted because of occurrence of delay. 7 The application was opposed by respondents contending that no sufficient cause has been exhibited by the appellant for granting indulgence in their favour. 8 Placing reliance on the judgments in the matter of Laxman Divekar Vs. State of Maharashtra, reported in AIR 1998 Bombay 176 and in the matter of Kamalabai Vs. Ganpat Gaware, reported in 2007 (1) Mh.L.J. 807, learned District Judge came to the conclusion that the reason exhibited by appellant seeking condonation of delay is not convincing and as such rejected the application. 9 It is true that merely citing reason as administrative difficulty is not sufficient cause in law for condoning delay. However, other facts, such as, whether delay caused is intentional and as to whether party approaching the Court is beneficiary of such delay are also matters which are required to be taken into account. In the instant matter, decree of injunction is passed against CIDCO, which is a statutory authority, in respect of valuable landed property. It cannot be said that by approaching first appellate Court late, the statutory body has gained anything or that rights of plaintiffs are in any way tried to be defeated. In these circumstances, learned Judge of first appellate Court ought to have considered the application by adopting liberal approach. This Court, in the matters concerning condonation of delay, consistently adopts a liberal approach. I 4 am of the view that controversy giving rise to the dispute shall have to be, as far as possible, be settled on consideration of merits of the matter. The party approaching the Court shall have to be permitted to put up its case before Court and endeavour shall be made to decide the dispute on its own merits. Inconvenience caused to other side, in a given case, can be compensated in terms of money and by directing appellant to pay costs. 10 Learned Counsel for appellant seeks leave to place reliance on the judgment of Apex Court in the matter of N. Balakrishnan Vs. M. Krishnamurthy, reported in AIR 1998 SC 3222. Considering the ratio laid down by the Apex Court in the reported judgment, I am of the opinion that matter requires favourable consideration. 11 For the reasons stated above, appeal presented by appellant deserves to be allowed and same is accordingly allowed. Order dated 02.03.2007, passed by District Judge-5, Aurangabad in M.A.R.J.I. No.212/2006, is quashed and set aside and application tendered by appellant – original defendant before first appellate Court seeking condonation of delay of 112 days occurred in presenting first appeal stands condoned subject, however, to condition in respect of payment of cost of Rs.10,000/- (Rs.Ten thousand) to be deposited before first appellate Court within a period of ten weeks from today. In the event of failure to deposit costs, as directed, order passed today shall be deemed to have been revoked. (R.M.BORDE) JUDGE ******* adb/sa11510