1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.410 OF 2010. (PURUSHOTTAM DADAJI BIND....VS.. JAGDISH DADAJI BIND) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. H.R.Gadhia, Advocate for Appellant. Mr. Abhijeet Sambaray, Advocate for Respondent. CORAM : SMT. VASANTI A. NAIK, J. DATED : SEPTEMBER 06, 2010. Heard learned counsel for the parties. 2. The appellant is the original defendant. The suit was filed by the plaintiff for a declaration that he is the owner of the suit property and direction to the defendant to hand over the suit property to the plaintiff by removing the obstruction 3. The defendant/ appellant was duly served with the suit summons and appeared in the proceedings but failed to file his written statement, hence, the suit proceeded without the written statement. On the basis of the pleadings and the evidence on record, the trial Court held that the plaintiff had not succeeded in proving that the suit property was partitioned but he had succeeded in proving that the portion marked in the plaint map was in the possession of the defendant and the defendant was causing obstruction to the possession of the plaintiff over his property. The trial Court, therefore, decreed the suit of the plaintiff and directed the defendant to handover the portion marked in the plaint map to the plaintiff by the judgment dated 23.11.2005. 4. The defendant challenged the judgment dated 23rd November, 2005 in the first appeal before the District Judge at Nagpur on 2 04.05.2009. Since there was delay of 3-½ years in filing the first appeal an application for condonation of delay was filed by the defendant/ appellant. The District Judge-5, Nagpur, however, by the judgment and order dated 08.06.2010, dismissed the application for condonation of delay. 5. The findings recorded by the first appellate Court for dismissing the application for condonation of delay are supported by cogent and convincing reasons. It is necessary to note that the application for condonation of delay was filed along with the appeal on 04.05.2009 though the decree was passed on 23.11.2005. It is merely stated in the application for condonation of delay that after filing the reply to the temporary injunction application, the appellant/ defendant got paralysis attack and also suffered from many diseases. It is stated in the application that along with the appellant/ defendant other family members of the appellant i.e. his wife and his son also suffered from many diseases and their treatment was going on. It is stated in the application that the appellant/ defendant was facing execution proceedings and the doctor had advised him bed rest due to the undergoing tension. The respondent/ appellant, therefore, sought for condonation of delay of 3 ½ years in filing the first appeal. 6. The respondent/ plaintiff had categorically stated in the reply that the application for condonation of delay was devoid of merits and the averments made in the application were totally false to the knowledge of the appellant. 7. On a bare reading of the application, it is clear that the appellant/ defendant was prosecuting the matter before the executing Court but had failed to file an appeal against the judgment and decree passed by the trial Court during that period. Moreover, a 3 general statement is made in the application that the appellant/ defendant suffered from so many diseases and his wife and son also suffered from so many diseases. The first appellate Court held that it was difficult to believe the reasons stated in the civil application for condonation of delay in filing the appeal. Moreover, according to the first appellate Court, the appellant had participated in the execution proceedings, though he was allegedly sick and this showed that there was no reason for the appellant, not to file an appeal at least during the period when the appellant was prosecuting / defending the execution proceedings. The first appellate Court rightly held that the reason of sickness of the appellant/ defendant was worth rejection. 8. The reasons recorded by the first appellate Court for dismissing the application for condoning the huge delay of 3-½ years are just and reasonable and the findings recorded by the first appellate Court in this regard do not give rise to any substantial question of law. The judgment reported in AIR 2005 SC 1958 cannot be made applicable to the facts of this case as in that case there was a delay of only seven months and the other facts in the matter were also distinguishable. So also the judgments reported in AIR 2007 Sikkim 39 and AIR 1978 Gauhati 9 also cannot come to the help of the appellant/ defendant for seeking condonation of the huge delay of 3 ½ years, specially on the basis of the reasons stated in the application for condonation of delay which appeared to be palpably incorrect. Hence, the second appeal is dismissed with no order as to costs. JUDGE RR.