1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JRUSIDICTION CIVIL APPLICATION NO.2904 OF 2003. IN FIRST APPEAL STAMAP NO.23880 OF 2003. WITH CIVIL APPLICATION NO.2905 OF 2003 Bhupendra S/o Late Dahyabhai Patel ... Applicant versus Smt.Kaminiben W/o. Pravin Kumar Patel and others ... Respondents. Mr.Ketan Parekh for the Applicant. Mr.Naveen Parekh with Mr.Hetal Patel for the Respondent Nos.1 & 2. CORAM : R.M.SAVANT,J DATED : JULY 17, 2008 P.C. 1. By the above Civil Application, the Applicant prays for condonation of delay of 646 days in filing the aforesaid First Appeal against the Judgment and Decree dated 8.8.2001 passed by the 2 learned Judge, City Civil Court, Bombay in Suit No.8222 of 1991. 2. The Applicant was one of the original Defendants against whom the suit for eviction was filed. Significantly in the said suit, Defendants Nos.1, 3, 4 and 5 had filed a common written statement. The said suit came to be decreed on 8.8.2001. It is the case of the Applicant that he had met with a train accident, as also the Applicant was suffering from cervical spondilises, hyper tension and diabetes and also suffering from a paralytic strock in the year 1991, and, on account of the fact that there was no communication from his advocate, he was not aware of the Notice of Motion as well as the suit being decided exparte. It is also the case of the Applicant that he became aware of the decree passed in the said suit on 15-2-2003. It his case that thereafter he applied for certified copy of the Judgment and decree on 7-5-2003 and collected the same on 30-6-2003 and, thereafter he lodged the above First Appeal on 5-7-2003. 3. The Applicant also relies upon the papers relating to the medical treatment that the Applicant had undergone. It is, therefore, 3 submitted on behalf of the Applicant that the delay was not account of any negligence on the part of the Applicant but on account of the circumstances beyond the control of the Applicant. 4. Per contra it is contended by the learned counsel Shri Naveen Parekh appearing on behalf of the Respondents that no sufficient cause has been shown by the Applicant for condonation of delay. Shri Parekh submitted that assuming that the Applicant had acquired knowledge of the said decree in the said Suit on 15-2-2003, the application for certified copy was made on 7-5-2003 i.e. after a period 81 days. Thereafter though the certified copy was ready on 26-5-2003, the Applicant had chosen to collect the same on 30-6- 2003. Therefore, according to Shri Parekh, the learned counsel for the Respondents, there is absolutely no explanation for the delay in applying for the certified copy and collecting the same. It is further submitted by him that though the Applicant claims indulgence of this Court on the ground of his illness, pertinently the Applicant has filed substantive suit claiming title to the property in question after the said decree came to be passed on 8.8.2001. Therefore, according to Shri 4 Parekh, the explanation and justification sought to be given by the Applicant is not bonafide. Shri. Parekh submitted that the Applicant performed wedding of his daughter during the said contemporaneous period when he was supposed to be unwell. Shri Parekh further submitted that the Applicant had also gone to the United States of America for a considerable time and, according to Shri Parekh the said trip was not for his treatment only as is sought to be made out. Shri Parekh lastly submitted that the explanation/justification sought to be given by the Applicant cannot be countenanced in view of Para 5 of the above Civil Application. In the said Para 5 it has been averred that the Applicant has executed a Power of Attorney in favour of his son-in-law one Nilesh Patel in July 2000. It is further averred in the said Para 5 that the said Power of Attorney covers the property matters also. It is, therefore, submitted by Shri Parekh, that the explanation/justification sought to be given for delay on the ground of illness of the Applicant is merely a ruse adopted by the Applicant to get the said delay condoned. 5. Having considered the rival contentions of the respective 5 parties, in my view, the relief sought by the Applicant by way of the above Civil Application for condonation of delay of 646 days cannot be granted. It would be pertinent to note that the Applicant has executed a Power of Attorney in favour of his son-in-law Nilesh Patel in July 2000. There is no explanation whatsoever in the above Civil Application as to why the said Constituted Attorney did not remain present in the Court when the said suit was heard and why the said Constituted Attorney could not file the Appeal within limitation. It would also be pertinent to note that the present Civil Application is also filed by the said Nilesh Patel and he has also filed the affidavit in rejoinder. There is, therefore, substance in the submission of Shri Naveen Parekh, the learned counsel appearing for the Respondents that the illness of the Applicant is a ruse to get the huge delay of 646 days condoned. 6. It would also be pertinent to note that the indolence and negligence of the Applicant is writ large over every step. Assuming that the Applicant had acquired knowledge of the said Judgment and 6 Decree on 15-2-2003, significantly the application for certified copy was made on 7-5-2003. Therefore, there was delay of 81 days which has gone unexplained. It is also pertinent to note here that even after the said application for certified copy was made, there was also delay in collecting the certified copy. Though the certificate copy was ready on 26-5-2003, the Applicant had chosen to collect the said certified copy on 30-6-2003. For the aforesaid delay, there is absolutely no explanation given by the Applicant in the above Civil Application. 7. The fact that the Applicant has performed wedding of his daughter and has also undertaken a trip to the United States of America prima facie indicates that the illness from which the Applicant was suffering was not a debilitating one so as to totally immobilize the Applicant. The Applicant, therefore, should have taken the necessary steps to prosecute the remedy available to him in law. This is notwithstanding the fact that the Applicant had executed a Power of Attorney in favour of his son-in-law in July 2000. 8. Though it is well settled that in matters of condonation of 7 delay a highly technical and pedantic approach should be eschewed and a approach which supports the cause of substantial justification should be adopted. In my view, the facts of the instant case are such that no indulgence could be shown to the Applicant. The entire approach of the Applicant in the instant case appears to be not bonafide, but appears to be to somehow or the other to get the delay condoned. As indicated above, the Applicant has now filed a substantive suit claiming title to the property in question. 9. Another aspect that is to be considered is that though a common written statement was filed on behalf of the Defendant Nos.1, 3, 4 and 5, in the instant case, the explanation/justification sought to be given for the delay is only on the ground of illness of Applicant/Defendant No.1. There is absolutely no material on record as to what prevented the other Defendants from prosecuting the said suit and filing the appeal. In my view, therefore, no case is made out for condonation of delay. The above Application is, accordingly, rejected. 8 10. In view of the rejection of the above Civil Application No.2905 of 2003, the First Appeal does not survive in the eyes of law and is, therefore, disposed of. [R.M.SAVANT, J]