1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.743 OF 2009 1 Sopan s/o Dhondiba Kamble, age: 52 years, Occ: Agril., 2 Dnyanoba s/o Dhondiba Kamble, age: 37 years, Occ: Agril., Both R/o Umri, Taluka and District Parbhani. Appellants Versus 1 Smt.Sundrabai w/o Sukhdeo Pradhan, age: 43 years, Occ: Agril. & Household, R/o Bhosi, Tq.Manwat, Dist.Parbhani. 2 Smt.Yeshodabai w/o Limbaii Satsamundre, age: 61 years, Occ: Agril. & Household, R/o Daithana, Tq. & Dist.Parbhani. 3 Smt.Indrabai w/o Rajabhau Choure, age: 57 years, Occ: Agril. & Household, R/o Lasina, Tq.Sonpeth, Dist.Parbhani. Respondents Mr.M.P.Kale, advocate for appellants. Mr.P.N.Kalani, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 20 th January, 2010. ORAL JUDGMENT: 1 This is an appeal by original defendants raising challenge to the judgment and decree passed by District Judge-2, Parbhani in M.A. (RJ.E) No. 2 40 of 2008 decided on 25.09.2009. 2 Respondents-plaintiffs instituted suit claiming recovery of possession of agricultural field G.No.86 admeasuring 1 hectare 52 ares on the basis of title. 3 It is not necessary to go into factual details of the matter for deciding controversy arising in the instant Second Appeal. Defendants though caused their appearance in the suit, failed to file written statement and as such, suit was proceeded in the absence of there being any defence put forth by defendants. 4 The trial Court, after considering evidence led by plaintiffs, granted decree, as prayed for. Original defendants/appellants herein presented appeal to the first appellate Court, however, there was delay in presentation of appeal. As such, an application was tendered requesting the Court to condone delay, that has occurred in presenting the appeal. It is stated that there is delay of about two years, two months and eight days in presenting appeal. It is stated by original defendants / appellants herein in the application seeking condonation of delay that they are illiterate villagers and were away from village for considerable time. It is stated that defendants as well as their family members had left village and had gone for doing labour work to Pune as well as Nasik. They were not informed about progress of the suit. Defendants contend that they gained knowledge about passing of decree by trial Court only after they received notice of execution proceedings. They thereafter approached their Counsel and requested him to cause appearance in execution proceedings. Defendants thereafter took steps for filing appeal before first appellate Court. It is stated that the delay, 3 that has occurred, is unintentional and caused because of the reason that defendants were away from village for earning their livelihood. The application tendered by defendants was opposed by original plaintiffs / respondents herein by filing reply. The first appellate Court, after considering rival contentions, found that defendants have not properly explained delay and as such rejected the application. 5 I have perused the application and order passed by first appellate Court and heard arguments advanced by learned Counsel for respective parties. 6 The substantial question of law that arises for consideration in the appeal is: Whether first appellate Court was justified in turning down application presented by defendants seeking condonation of delay on the ground that defendants / appellants herein have not proved sufficient cause for tendering appeal late? 7 Admit. By consent of learned Counsel for respective parties, matter is taken up for final hearing forthwith. 8 It cannot be controverted that defendants are agriculturists and residing in a remote village. It is their contention that they were away from village as they were required to work as labourers to earn their livelihood. They were not informed about the progress of the suit. It is revealed from perusal of record that defendants did not file written statement. Thus, contention raised by defendants appears to be truthful. It is to be noted that defendants are not likely to be benefited on account of causing delay. Although it is stated that because of inaction on the part of defendants, 4 decree passed by trial Court, which is in favour of plaintiffs, could not be put to execution and they could not receive fruits of decree, however, considering facts and circumstances of the case, it cannot be said that delay caused by defendants / appellants herein is intentional. It is to be noted that a lenient view is required to be taken in the matters of condonation of delay and especially in the circumstances when question relating to entitlement to immovable property is involved. So far as inconvenience caused to original plaintiffs is concerned, same has to be compensated in terms of money. The consideration for computing costs is that decree is passed by the trial Court in favour of plaintiff in the month of December 2005, and could not be executed for considerable period. The question involved in the appeal is in respect of entitlement of the plaintiffs to an area admeasuring 1 hectare 52 ares situate at village Dafwadi, Taluka and District Parbhani. Plaintiffs, as such, are deprived from receiving fruits of the decree till today. In these circumstances, defendants are required to make good the loss occasioned to plaintiffs. 9 In this view of the matter, while directing condonation of delay, I deem it appropriate to direct defendants to deposit amount of Rs.10,000/- (Rs.Ten thousand) towards cost payable to original plaintiffs, before the first appellate Court, within a period of six weeks from today. On deposit of cost by defendants – appellants herein, plaintiffs would be entitled to withdraw same. 10 In the result, appeal is allowed. The judgment and order, passed by District Judge-2, Parbhani on 25.09.2009 in M.A. (RJE) No.40/2008, is quashed and set aside and application tendered by appellants – original defendants seeking condonation of delay shall be deemed to have been 5 allowed. The first appellate Court is directed to hear appeal on its own merits and decide same expeditiously. The first appellate Court shall make an endeavour to decide appeal as early as possible, preferably within a period of six months from the date of receipt of writ of this Court. The order of stay in respect of execution of decree, passed by this Court, shall remain operative till consideration of application for stay by the first appellate Court. In view of disposal of appeal, pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa74309