1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 34 OF 2009 Khutujabi @ Khatun Babusab Tahsildar & Ors. .. Petitioners Vs Shri Sajid Ahmedso Ajrekar & Ors. .. Respondents ­­ Shri D.B. Patil for the Petitioners. Shri Amit Sale for Respondent Nos.3­B and 3C. ­­ CORAM : A.S.OKA, J. DATE : 31ST MARCH, 2010 P.C: . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent Nos.3­B and 3­C. The office noting shows that apart from the Respondent Nos.3­B and 3­C, notices have been served to Respondent Nos.4, 7, 8, 8(a) to 8(c), 8(e) and 8(f). The Respondent Nos. 5, 6, 8­d, 9 and 10 have expired and their heirs have not been brought on record. The office noting further shows that the Respondent Nos.1, 2, 3­A and 3­D are not served. The learned counsel appearing for the Petitioners states that he is pressing the petition only against those Respondents who are duly served. 2 2. I have heard the learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent Nos.3­B and 3­C. The present Petitioners filed an application for condonation of delay in preferring an appeal against a decree passed in the suit filed by the Petitioners by which the suit was dismissed. It was contended in the application that some of the Petitioners who were the Plaintiffs are permanent residents of Belgaum and they had executed a power of attorney in favour of two persons on 30th July, 1998 who were supposed to look after the suit. He stated that the said power of attorney holders did not inform the Petitioners about the dismissal of the suit. After one of the Petitioners learnt about the dismissal of the suit, the Petitioners approached the Constituted Attorney and collected the papers from them. Thereafter, the steps were taken to engage an advocate and to prefer an appeal. There were delay of 153 days in preferring the appeal. 3. After having heard the learned counsel appearing for the parties, I find that the impugned order is erroneous. While deciding the application under Section 5 of the Limitation Act, 1963 a liberal and justice oriented approach was contemplated. Perusal of the impugned order shows that the learned District Judge has dealt with the merits of the suit and has come to the conclusion that in view of the certificate under Section 32(M) of the Bombay Tenancy and Agricultural Act, 1948, the present Petitioners are not entitled to claim partition. It appears that the explanation offered from the Petitioner for condonation of delay has not 3 been considered by the learned District Judge on merits. The delay was about 153 days and the averments in the application made by the Petitioners sufficiently explain the delay. The said application deserves to be allowed. The only Respondent Nos.3­B and 3­C have contested this Petition. The Petitioners will have to pay costs quantified at Rs.3,500/­ to the said two Respondents. 4. Hence, I pass the following order. (a) The impugned order is quashed and set aside. (b) The Misc. Application No. 3 of 2003 preferred by the Petitioners stands dismissed as against the Respondent Nos.1, 2, 3­A, 3­D, 5, 6, 8(D), 9 and 10. The application survives only as against the Respondent Nos.3­B, 3­C, 4, 7, 8­A to 8­C, 8­E and 8­F. (c) Misc. Application No. 3 of 2003 is hereby allowed subject to the Petitioners paying costs of Rs.3,500/­ to Respondent Nos.3­B and 3­C within a period of six weeks from today. (d) The amount of costs shall be deposited within the stipulated time with the Appellate Court. 4 (e) Payment of costs will be a condition precedent. (f) The Petition is partly allowed in above terms. (A.S.OKA, J)