1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.84 Of 2010 With Civil Application No.5719 Of 2009 Pitambar Kisan Kolhe. ... Appellant. Versus Pralhad Kisan Kolhe & Anr. ... Respondents. -------- Shri. M.M. Bhokarikar, Advocate for the appellant. Shri. C.K. Shinde, Advocate for respondent No. 1. -------- CORAM: R.M. BORDE, J. DATE: 10th FEBRUARY 2010 PER COURT : 1) Heard respective learned counsel appearing for the parties. 2) The only substantial question of law that arises in this appeal is - “Whether the First Appellate Court was justified in rejecting the application seeking condonation 2 of delay presented by the appellant, original defendant, on the ground that no sufficient cause has been exhibited by him ?” 3) This is an appeal filed by the original defendant raising challenge to the order passed by the District Judge-2 Jalgaon on 11-2-2008 in Misc. Civil Appeal No.71 of 2006 thereby rejecting the application tendered by the appellant, original defendant, seeking condonation of delay occurred in presenting first appeal. 4) The respondent No.1 herein presented a regular civil suit bearing No.197 of 1991 claiming partition and separate possession of the ancestral properties. The plaintiff and defendant No.1 are brothers inter se. The trial Court granted decree in favour of the plaintiff and directed partition of the 3 ancestral properties in view of the judgment and decree dated 31-12-2001. The appellant, original defendant, presented an appeal raising exception to the decree. However, the appeal was barred by time as such an application seeking condonation of delay came to be presented by the defendant. According to the defendant, there occurred delay of 5 years 2 months and 28 days in presenting the appeal. The application was opposed by the respondent by filing say. Considering the rival contentions, the First Appellate Court was not convinced as regards merit of the contentions raised by the appellant herein as such the application came to be rejected by order dt. 11-2-2008. 5) I have perused the application as well as the impugned order passed by the First Appellate Court. It is contended by the 4 appellant, original defendant, in the application that, the Advocate representing him before the trial Court has not informed as regards the decision rendered in the suit as such, he could not get any knowledge in respect of the disposal of the suit. The defendant could get knowledge only after he received notice of the execution of the decree. The defendant contends that he has purchased the property for valuable consideration and the disputed property being self acquired property he could be given an opportunity to raise his objection to the decree on merits before the First Appellate Court. The First Appellate Court found that the reasons put forth by the defendant seeking condonation of delay are not convincing. 5 6) The counsel appearing for the respondent, original plaintiff, has opposed the application vehemently contending that the appellant, original defendant, has not shown sufficient cause for condoning delay. It has also been pointed that the decree passed by the trial Court in respect of partition of agricultural property has already been executed whereas the decree in respect of partition of one of the houses is yet to be executed. It is thus clear that the original plaintiff has received possession of the agricultural property and one of the house properties as per the decree passed by the trial Court. In these circumstances, it cannot be now contended that the appellant has caused delay in presenting the appeal in order to defeat or delay the claim of plaintiff. Since the decree has already been executed and since the parties to the litigation are related as 6 brothers inter se, it would be appropriate in the facts of the case to extend further opportunity to the defendant to raise his objections as regards the merits of the controversy involved in the matter before the First Appellate Court. Inconvenience that may be caused to the other side can be compensated by directing payment of costs by the defendant to the plaintiff. This Court normally takes a liberal view in matters of condonation of delay. In these peculiar facts and circumstances I deem it appropriate to allow the appeal and to direct the First Appellate court to decide the appeal on its own merits. 7) In this view of the matter, the judgment and order passed by the District Judge-1 Jalgaon on 11-2-2008 in Misc. Civil Appeal No.71 of 2006 is quashed and set aside and the application tendered by the defendant, 7 appellant herein, seeking condonation of delay shall be deemed to have been allowed subject, however, to payment of cost of Rs.10,000/- (Rupees ten thousand) payable within a period of six weeks from today. On making deposit of the amount towards cost in first appellate Court, the plaintiff shall be entitled to withdraw the same. In the event of failure to deposit the cost, the order passed in the instant appeal shall be deemed to have been withdrawn. The First Appellate Court shall consider the controversy involved in the matter and decide the appeal as expeditiously as possible and preferably within a period of six months. 8) The Civil Appeal stands disposed of. Civil Application No.5719 of 2009 does not survive and it stands disposed of. (R.M. BORDE, J.) rsl/ sa.84.10