1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition no. 1799 of 2011 Ramesh G. Agrawal VERSUS Gopal B. Rathi and others. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 29 , 2011 . By this petition, the petitioner impugns the order passed by the Adhoc District Judge-1, Nagpur, on 5/4/2011 rejecting the application filed by the petitioner for condonation of delay of 176 days in preferring appeal against the judgment and decree dated 25/2/2009. It was the case of the petitioner before the first appellate court that though the judgment was passed by the trial court on 25/2/2009, the petitioner became aware of the same on 28/5/2009. The petitioner applied for grant of certified copy of the judgment on 29/5/2009 and the same was received on 16/6/2009. Though the appeal memo is said to have been prepared on 20/6/2009, it is the case of the petitioner that he was not able to swear an affidavit as he suffered cardiac problem and hyper tension, as a result of which the doctor advised him bed rest. It is stated in the application for condonation of delay that on 4/10/2009 the petitioner recovered from his illness and was able to perform 2 his regular work. The appeal along with an application for condonation of delay in filing the same was filed in the first appellate court in the month of October, 2009. The respondent denied the case of the petitioner and also denied that the appeal could not have been filed till October, 2009 due to the sickness of the petitioner. It was stated in the reply that the petitioner was a practicing lawyer of 37 years standing and was represented by an advocate in the trial court. It is stated in the reply that it is most unlikely, in the aforesaid circumstances that the petitioner did not know about the judgment and order dated 25/2/2009 till 28/5/2009. It was stated in the reply that the petitioner was misusing the process of law for delaying the execution proceedings. The first appellate court by the impugned order dated 5/4/2011 rejected the application filed by the petitioner. On hearing the learned counsel for the parties and on perusal of the documents on record, it appears that the first appellate court was justified in rejecting the application for condonation of delay in filing the appeal. It is necessary to note that the petitioner did not tender any oral evidence in the case and stated that he did not wish to lead any evidence in support of his application. In the absence of the oral evidence, the first appellate court relied on the pleadings and the documents on record to hold that the petitioner had not sufficiently explained the delay in filing the appeal. The court observed by relying on the judgment reported in 2011(2) Mh.L.J. 94 that the petitioner was a practicing advocate and was very much aware of the 3 litigation. The court observed that the petitioner was also represented by a counsel in the trial court and therefore the submission of the petitioner that he was not aware of the judgment dated 25/2/2009 till 28/5/2009 was not believable. The Court observed that though the petitioner had been suffering from illness during the period from February, 2009 to October, 2009, most of the medical certificates pertain to the year 2001. It was noted by the court that in none of the certificates issued in the year 2009 it was mentioned that the petitioner was advised bed rest or was prevented from doing his day-to-day activities. In the facts and circumstances of the case, the court found that there was no substance in the submissions made on behalf of the petitioner. By recording certain facts which occurred during the intervening period, the court observed that the petitioner had not approached the court with clean hands and had filed the application for condonation of delay merely with a view to protract the proceedings. The reasons recorded by the first appellate court for rejecting the application filed by the petitioner appear to be just and proper. So also, the fact that the petitioner had declined to tender oral evidence in regard to the delay caused also is a weighty circumstance for rejecting the application filed by the petitioner. Moreover, in an affidavit filed by the respondent before this court it is stated that the petitioner, a practicing advocate had many appearances in various matters before the High Court during the period from 18/02/2009 to 18/12/2009. Hence, for the reasons aforesaid, the impugned order passed by the first appellate court cannot be interfered 4 with in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE Hirekhan