1 W.P.No.386/05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.386 OF 2005. Manjulabai Sukdeo Auti, Age 64 years, Occ.Household, R/o Panoli, Taluka Parner, Dist.Ahmednagar. ... Petitioner. Versus 1. Dattatraya S/o Mahadu Ware, (died) through Legal representatives; 1-A) Shantabai Dattatraya Ware, Age 60 years,Occ.Household, R/o Panoli,Taluka Parner, Dist.Ahmednagar. 1-B) Sushilabai Dattatraya Ware, Age 55 years,Occ.Household, R/o as above. 1-C) Sou.Mandabai Subhash Ware, Age 40 years, Occ.Household, R/o as above. 1-D) Kundabai Nivrutti Udar, Age 38 years,Occ.Household, R/o as above. 1-E) Mukund Dattatraya Ware, Age 33 years, Occ.Agri., R/o as above. 1-F) Shevrabai Dattatraya Ware, Age 17 years, Occ.Nil, 2 W.P.No.386/05 since minor represented through her natural guardian i.e. Respondent No.1-A. 2. Pandurang S/o Rakhma Zagde, Age 51 years, Occ.Agri., R/o Panoli, Taluka Parner, Dist.Ahmednagar. ... Respondents. ... Mr.K.N.Lokhande, advocate holding for Mr.D.G.Nagode, advocate for the petitioner. Mr.R.N.Dhorde, advocate for Respondent Nos.1A to 1F. ... CORAM : S.V.GANGAPURWALA,J. Date : 11.11.2011. ORAL JUDGMENT : 1. Heard. 2. The petitioner impugns the order dated 28.7.2004, passed by the 4th Adhoc Addl. District Judge, Ahmednagar, rejecting the application for condonation of delay in filing the appeal. 3. The learned counsel for the petitioner submits that the District Court has taken a very hyper technical approach while rejecting the 3 W.P.No.386/05 application for condonation of delay. The matter involves the rights of the parties in an immovable property. The Court should have taken a liberal approach. It is not disputed that the petitioner was residing at Bombay along with his sons and grandsons and for about a month, the petitioner was not well and was hospitalised, could not contact the advocate and the advocate passed no instructions purshis, without intimating the petitioner. The petitioner did not get knowledge of the judgment and decree and immediately within two days of getting knowledge, the petitioner took steps of filing an appeal. In such circumstances, the delay should have been condoned. 4. The learned counsel for the plaintiff submits that the District Court has properly considered all the aspects and has rightly rejected the application. The petitioner has not filed any documentary evidence to substantiate the averments made about her illness. In absence of any documentary evidence, the Court was justified in negativing the contentions of 4 W.P.No.386/05 the petitioner. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Bipin H.Doshi Vs. Jawaharlal Prajapati and others" reported in 1999 (1) ALL MR 63. The learned counsel further contends that the expression "sufficient cause" has to be construed in a manner that it can not be erased from Section 5 of the Limitation Act. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Kamalbai W/o Narasaiyya Shrimal and another Vs. Ganpat S/o Vithalrao Gavare" reported in 2007 (1) Mh.L.J. 807. The learned counsel further contends that deliberately the petitioner did not appear and the petitioner has gained advantage by causing delay. 5. It is a trite law that when technical considerations and cause for substantial justice are pitted against each other, the cause for substantial justice shall be sub-served. 6. It is not disputed that the advocate of the petitioner had filed no instructions purshis. Even the District Court in its impugned order has 5 W.P.No.386/05 observed that the advocate before filing No instructions purshis has not issued any notice to the petitioner nor any such notice is on record. Nothing has been brought on record to show that after the judgment and decree was passed, the petitioner had the knowledge of the same and still had not preferred appeal. The petitioner contends that when the petitioner approached her lawyer, on 6.1.2001, at that time the petitioner got the knowledge that the suit is decreed on 19.10.2000 and immediately on 8.1.2001, filed application for certified copy and filed appeal. From the date of knowledge, there is no delay in filing the appeal. 7. There is no reason to disbelieve the ground enumerated by the petitioner inasmuch as there is no contra evidence in that regard. As the advocate of the petitioner had filed No instructions purshis without intimating the petitioner, knowledge can not be attributed to the petitioner about the judgment and decree. 8. In light of the above, I am inclined to 6 W.P.No.386/05 condone the delay by setting aside the impugned order. At the same time, the applicant/petitioner also deserves to be mulct with cost. 9. In the result, I pass the following order : (i) The Writ Petition is allowed. Rule is made absolute in terms of prayer clause (B) on condition that the petitioner pays cost of Rs. 7,000/- (Rupees seven thousand) to the plaintiff within a period of three (3) weeks from today. If the cost is paid within a period of three(3) weeks, then the District Court shall register the appeal if otherwise conforms with all other legal requirements. (ii) In view of disposal of Writ Petition, Civil Application No.12401/2011 stands disposed of. (S.V.GANGAPURWALA,J.) asp/office/wp386.05 7 W.P.No.386/05