1 SA 441.2006 ARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 441 OF 2006 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. R.K.Temkar,Advocate for the appellant. Mr. G.K.Thigle, Advocate for Resp.no. 1 & 2. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 24/03/2011 PER COURT : 1. The present respondent nos. 1 and 2 had instituted a Suit for partition and separate possession, which came to be decreed. The present appellant, who was original defendant no. 3, preferred Appeal. There was delay of eleven ( 11) months in filing the Appeal. As such, along with Regular Civil Appeal, the present appellant also filed an application for condonation of delay under Section 5 of the Limitation Act. The District Judge, Beed vide its Order dated 20/3/2009 rejected the said application for condonation of delay. The appellant being aggrieved thereby has filed the present Appeal. 2 SA 441.2006 2. Mr. Temkar, the learned counsel for the appellant contends that the appellant was residing at Bombay and as such he could not get the knowledge of the decree. There was communication gap between the Advocate and the appellant. After he had engaged Advocate, there was no participation of the appellant in the proceedings. The appellant was required to remain at Bombay for his service. According to the learned counsel, the rights of the appellant in an immovable property are involved. In fact, the appellant is a purchaser of the property from the husband of plaintiff no. 1. The learned counsel further contends the liberty be given to the appellant to file Appeal as the Appeal is the substantive right of the party. 3. Mr.V.A.Dhakhe, the learned counsel for the respondent nos. 8 and 9 also supports the arguments advanced by Mr. Temkar, the learned counsel for the appellant. 4. Mr. G.K. Thigle, the learned counsel for original plaintiffs submits that the appellant can not take the advantage of his own wrong. He is in possession of the part of the suit property and as such the matter is deliberately protracted. The Appeal was not filed in time intentionally as they 3 SA 441.2006 were enjoying the suit property. The learned counsel submits that no sufficient cause has been stated in the application. In such circumstances, no fault can be found in the order passed by the District Judge. 5. In light of the above, the following substantial question of law arises : (i) Whether the reasons stated by the appellant comes within the realm of ‘ sufficient cause ’ ? 6. It is a trite law that when technical considerations and the cause for substantial justice are pitted against each other, the cause of substantial justice shall prevail. The record shows that the appellant after engaging the Advocate, did not participate in the proceedings and he was residing at Bombay. As such, in all probabilities, he may not be aware of the Judgment and decree passed by the trial Court. The Appeal is the substantive right of the parties. The rights of the appellant in an immovable property is the subject matter of the dispute. The expression ‘ sufficient cause ’ has to be liberally construed. Taking into account the above conspectus of the matter, I think it appropriate to condone the delay. At the same time, the appellant is in possession of the 4 SA 441.2006 part of the property. The plaintiffs, in whose favour the decree is passed, is not in a position to enjoy the decree and as such is required to be compensated. 7. In that light of the matter, I pass the following order : i) The impugned order is quashed and set aside. ii) The application for condonation of delay is allowed subject to costs of Rs. 15,000/- (Rupees Fifteen Thousand only ) to be paid by the appellant to the respondents on or before 11/4/2011. iii) In case, the Appeal filed by the appellant before the District Court, Beed against the decree of the trial Court complies with all other legal requirements, the said Appeal be registered. iv) The parties shall appear before the District Court, Beed on 11/4/2011. v) Taking into account the fact that the matter has been filed in the year 1998 in the trial Court, the first appellate court shall dispose of the Appeal 5 SA 441.2006 within the period of six ( 6 ) months from the date of appearance of the parties. vi) The parties, who are added in the present Second Appeal, can make an application for addition before the Court below, which application the concerned Court may consider on its own merits. [ S.V. GANGAPURWALA,J. ] KNP/SA 441.2006