1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 708 OF 2010 (Kisanlal M. Agrawal vs. Smt. Durgabai wd/o Ratanlal Agrawal) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 22, 2010. Heard Shri Kshirsagar, learned counsel for the petitioner. This Court has issued notice for final disposal and though the respondent is served, he has chosen not to appear. There was no appearance even on last date. By impugned order dated 28.10.2009, delay in filing MCA under Order 43, Rule 1(r) of CPC has not been condoned. The proceedings were registered as MJC No. 30 of 2009 and from the impugned order dated 28.10.2009 passed by Principal District Judge, Akola, it appears that counsel for the applicant/ appellant did not remain present though the matter was called out repeatedly and because of the absence, the learned appellate Court has found substance in the finding of the trial Court that the applicant was not interested in prosecuting the matter. It, therefore, recorded that there was no propriety in keeping the application for condonation of delay pending when suit itself is at the stage of dismissal. Shri Kshirsagar, learned counsel, contends 2 that the absence of counsel on said date could have at the most enabled the Court to dismiss MJC for condonation of delay in default. The findings on merits as recorded are uncalled for and perverse. He has invited attention to application for condonation of delay filed before the appellate Court to show that the applicant is aged about 78 years and was suffering from some ailments and hence could not move. Because of his old age, he could not contact his counsel also and therefore appeal could not be filed within limitation. These reasons supported by an affidavit and also by Doctor’s certificate, are not considered by the appellate Court. The reply filed thereto is not supported by any affidavit. Considering all these circumstances, impugned order dated 28.10.2009 is quashed and set aside. Exh. 1 i.e. MJC No. 30 of 2009 on the file of Principal District Judge, Akola, is restored back for consideration on merits in accordance with law, however, subject to payment of cost of Rs.750/- by the appellant/ applicant/ petitioner to District Bar Association at Akola by 15th April 2010. If the costs are so paid, the appellate Court shall reconsider MJC No. 30 of 2009 on merits in accordance with law. Writ petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.