1 sa 404.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 404 OF 2010 Sunil Sukdev Kavhnane, Age : 48 Years, Occu. : Business, R/o 56, Baliram Peth, Jalgaon, Tq. & Dist. Jalgaon. .. .. Appellant Versus 1. Narendra Sukdev Kavhnane, Age : 52 Years, Occu. : Service, R/o 28, Shivaji Nagar, Jalgaon, Tq. & Dist. Jalgaon, and presently residing at M.S.E.B. Quarters, Old M.I.D.C. Area, Jalgaon. 2. Prabhavati Sunil Shinde, Age : 39 Years, Occu. : Household, R/o 5, C/o Sunil Shinde, Missionari Road, Nadiyad, District Kheda (Gujrat). .. .. Respondents Shri S. B. Yawalkar, Advocate for the Appellant. Shri S. P. Tiwari, Advocate for the Respondent No. 1. The Respondent No. 2 served. CORAM : S. V. GANGAPURWALA, J. DATE : 19TH APRIL, 2011. 2 sa 404.10 ORAL JUDGMENT : . The present respondent No. 1 had filed a suit for partition and separate possession which came to be decreed vide judgment and decree dated 29.06.2004. After the decree was passed the original defendant Nos. 1 and 2 i. e. parents of the present parties expired in the year 2006. The darkhast proceedings were filed by the plaintiff after the death of the parents. The present appellant was served with the notice of darkhast on 28.05.2007 and thereafter the appeal came to be filed on 04.07.2007. As there was delay in filing the appeal the present appellant filed an application for condonation of delay of 3 years and 4 days, which was registered as Misc. Civil Application No. 117/2007. The District Court rejected the said application vide its order dated 02nd September, 2009. Aggrieved thereby the appellant has assailed the said order in the present second appeal. 2. Shri Yawalkar, the learned counsel for the appellant contends that the lower Court has not given any reasons while not accepting the contentions of the present appellant. The learned Judge while rejecting the application has observed that, applicant has to explain each days delay which certainly is not the principle. According to the learned counsel, the plaintiff himself is in possession of one property exclusively. The subject 3 sa 404.10 matter of the suit are two properties out of which one is in exclusive possession of the plaintiff. So it cannot be said that the appellant would gain anything by causing delay. The learned counsel further contended that the father was looking after the proceedings, as he was in dominent position and the present appellant except signing the vakalatnama had not taken any steps in the proceedings. Even he was not aware of the judgment and decree passed. The fact that the plaintiff did not put the said decree for execution till the death of the defendant Nos. 1 and 2 i. e. the parents itself shows that the defendants could not get the knowledge immediately. On service of notice of execution the appellant has filed the appeal. The delay caused is not intentional one, but only due to the fact that the appellant was not aware of the judgment and decree passed against him. Even record shows that the present appellant did not participate in the proceedings which fortifies the contention that the present appellant was not aware of the judgment and decree. 3. Shri Tiwari, the learned counsel for the respondent No. 1 vehemently opposes the submissions and contended that the defendant Nos. 1 and 2 were residing along with defendant No. 3, so it can be presumed that the present appellant who was defendant No. 3 had knowledge of the proceedings and the judgment and decree passed. But on his own has chosen not to 4 sa 404.10 file an appeal. The relations interse are not disputed. So even the shares of defendant Nos. 1 and 2 would be equally divided amongst the parties. Shri Tiwari, the learned counsel further contended that no sufficient cause is stated for condonation of delay. The District Court has rightly considered all the aspects of the matter. The delay caused is not bonafide and is only meant to protract the execution and to defeat the execution. 4. In the light of the above the following substantial question of law arises. i) Whether the grounds stated by the appellant for condonation of delay would come within the realm of the expression "sufficient cause" ? Admit. 5. With the consent of learned counsel for the parties taken up for final hearing. 6. Even the notice which was issued on 16.06.2010 was issued with an intention that the matter would be heard finally at the state of admission. 7. I have heard the learned counsel at length and has also 5 sa 404.10 gone through the record and proceedings. The expression "sufficient cause" has to be liberally construed, more particularly when the rights of the parties in an immovable property are involved. It is trite law that when technical considerations and cause for substantial justice are pitted against each other, the cause for substantial justice shall sub-serve. The record shows that the summons were not served on the present appellant. The summons of the present appellant were served on his father. Thereafter, it is found that the present appellant had signed the vakalatnama and the advocate had appeared. Thereafter, the present appellant does not appear to have taken part in any of the proceedings of the suit, which would fortify the contention of the appellant that the father that is the defendant No. 1 was looking after the proceedings in the suit. Moreover, the father and the mother i. e. original defendant Nos. 1 and 2 died in the year 2006. Even till that date the plaintiff/respondent No. 1 did not file any execution proceedings. It is filed after the death of the parents. The record shows that the appellant was served with the notice of execution petition on 28.05.2007 and immediately after getting certified copies filed the appeal on 04.07.2007. All these facts would show that there is no intentional delay on the part of the appellant. The appellant is not required to explain each and every days delay. Even by 6 sa 404.10 causing the delay the appellant was not going to gain, as it is matter of record that the original plaintiff is in exclusive possession of one of the suit properties. There are only two suit properties and in the decree only 1/5th share has been given to the plaintiff. 8. Taking into consideration the above conspectus of the matter, I deem it appropriate to afford one opportunity to the appellant to contest the matter on merits. While dealing with the present appeal, I am not concerned with the reasons for non appearance of the appellant in the suit, that would be considered by the District Court on its own merits. Suffice it to state that there is no contra evidence to show that prior to 28.05.2007, the appellant had the knowledge of the judgment and decree dated 29.06.2004. In the light of the above, I am inclined to allow the Misc. Civil Application No. 117/2007, at the same time, the plaintiff needs to be compensated. As such, I pass the following order. O R D E R i) The second appeal is allowed. ii) The judgment and order dated 02.05.2009 passed by 7 sa 404.10 the District Judge - 2, Jalgaon, in Misc. Civil Application No. 117/2007 is quashed and set aside and the said Misc. Civil Application No. 117/2007 is allowed subject to condition that the present appellant pays cost of Rs. 10,000/- to the plaintiff i. e. present respondent No. 1 within a period of four weeks from today. iii) If the cost is paid and if the appeal otherwise complies with all other legal requirements, the said appeal be registered. iv) The lower Appellate Court shall thereafter decide the appeal within a period of six months. v) The second appeal is accordingly disposed of with aforesaid directions and observations. [ S. V. GANGAPURWALA, J. ] bsb/April 11