sa144.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 144 OF 2011 Vishnu s/o Babasaheb Chavan ...Appellant Versus Nanasaheb s/o Limbaji Pawar and others ...Respondents ..... Mr. Manoj Shelke i/b Mr. Sachin Deshmukh, advocate for the appellant Mr. D.G. Nagode, advocate for respondent Nos. 1 and 3 ..... CORAM: A.V. NIRGUDE, J. DATED: 21ST SEPTEMBER, 2011 PER COURT:- 1 Heard. 2 The following substantial question of law arises for consideration in this second appeal. “Whether the impugned judgment and order, passed by the learned District Judge, Beed, causes gross injustice to the appellant?” 3 The facts, leading to the present second appeal, in short, are as under;- The appellant is the original plaintiff whose suit was dismissed on 31.1.2009 by the learned IInd Joint C.J.J.D. Geverai. The appellant sa144.11 -2- stated before the first appellate court that he ought to have filed the appeal on or before 2.3.2009 but he could not file it because when the impugned judgment was delivered, he was away from his village for earning his livelihood. He stated that when he came back on 5.6.2009 he learnt about dismissal of his suit and thereafter he took steps to file appeal. But in the meantime, the appeal was delayed by about 80 days. 4 On 22.6.2009, he filed an application seeking condonation of delay along with the appeal memo. The notices were given to the respondents but they preferred not to appear before the court to oppose the application for condonation of delay. Be that as it may, yet the learned Judge refused to condone the delay for the reason that the appellant did not mention in the application for condonation of delay as to during which period the applicant was out of the village or that why the notice sent by his advocate could not be informed to the appellant by any of his family members is not mentioned in the application. 5 I am of the opinion that, the learned Judge of the first appellate court has taken a rather pedantic approach while seeking explanation for the delay. As stated above, the judgment was delivered on the last day of January, 2009 and when the information of dismissal was given, the appellant was not present in his village and he came back in the village on 5.6.2009 and came to know about dismissal of the suit. I think this averment was quite sufficient to take a lenient view. The learned Judge sa144.11 -3- ought to have considered that the poor agriculturists are required to search for their livelihood outside of their villages. They are required to remain away from their village and while they are so away, their family members may not be able to contact them. As expected by the family members, he returned back on 5.6.2009 and thereafter he promptly filed appeal on 22.6.2009. I think, the learned Judge of the first appellate court grossly erred in appreciating this simple case seeking condonation of delay and the order caused serious and grave injustice to the appellant. The appellant has lost his opportunity to challenge the impugned judgment of the trial court dismissing his suit. He deserves such opportunity even though there was delay. 6 In the result, the second appeal is allowed and disposed of. The impugned order dated 6.1.2011 passed by the learned Principal District Judge, Beed in Misc. Civil Application No. 124 of 2009 is quashed and set aside. The delay caused in filing the appeal is condoned. The appeal filed in the first appellate court shall be registered and numbered. The learned Judge of the first appellate Court shall hear the appeal and decide it on merits in accordance with law. ( A.V. NIRGUDE, J. ) rlj/ ok sa144.11 -4-