( 1 ) {wp4171-09} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4171 OF 2009 Ashok s/o Shankarrao Mokashe, R/o Andoor, Tq. Tuljapur, District Osmanabad. PETITIONER VERSUS 1. Gundu s/o Madhav Mokashe, R/o Andoor, Tq. Tuljapur, District Osmanabad, now residing at Shripur, Tq. Malshiras, Dist. Solapur. 2. Udhav s/o Yadav Mokashe 3. Shashikant s/o Yadav Mokashe 4. Suresh Yadav Mokashe, All r/o Andoor, Taluka Tuljapur, Dist. Osmanabad. RESPONDENTS .... Mr. A.S. More, advocate for the petitioner. Mr. S.M. Vibhute, advocate for the respondents No. 1 to 4. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 11th January, 2011] ORAL JUDGEMENT : 1. By this petition, the petitioner seeks to impugn order rendered by the learned Adhoc District Judge-2, Osmanabad in proceedings of Misc. Civil Application No. 225 of ( 2 ) {wp4171-09} 2007, whereby the application for condonation of delay of 7 years 1 month and 8 days was allowed. 2. The petitioner filed the suit for declaration and injunction (R.C.S. No. 77/2000). He claimed to be the priest of the Khandoba temple at village Andur on basis of registered will-deed executed by Narayan Mokashe who was the earlier hereditary priest of the said temple. The petitioner sought declaration that he has the exclusive right to work as priest of the said temple. Though summons were served, yet, the respondent No.1 did not appear in the suit. He was added as the original defendant No.1 in the suit. The suit proceeded exparte against him. The suit also proceeded exparte against the other three (3) defendants i.e. defendants No. 2 to 4 because of their absentia inspite of service of the summons. The respondent No. 1 preferred an appeal against the judgement and decree of the trial Court. He filed Misc. Civil Application No. 225/2007 seeking condonation of the delay caused in filing of the appeal. That application was contested by the present petitioner on the ground that there was no sufficient cause for condonation of the delay. By the impugned order, the said application came to be allowed. ( 3 ) {wp4171-09} 3. Heard learned counsel for the parties. 4. The only question involved in this petition is whether the condonation of the delay as per the impugned order is well justified or that the impugned order is perverse and arbitrary on account of improper consideration of the material as well as the grounds stated by the respondents. 5. At the outset, let it be noted that due service of the summons on the respondent No. 1 was never denied by him. His application purports to show that the reason for his absentia was that between 2000 to 2007, he was suffering from diabetes, blood pressure and heart-attack. He was treated by Dr. M.K. Inamdar at Ashwini Hospital, Sangram Nagar, Akluj. He vaguely alleged as follows : " That, the applicant was affected by heart attack, diabetes and blood pressure from 2000 to 2007, the applicant have taken treatment in Ashwini Hospital, Sangram Nagar, Akluk. He treated by Dr. M.K. Inamdar. The applicant spent the total amount of Rs. 2,50,000/- within span of 7 years. That, applicant have gone under treatment of the angioplasty and angiographies due to all these diseases, applicant was not in ( 4 ) {wp4171-09} position to move from place to place as he was advised to take rest till the month of November, 2007." 6. It is pertinent to note that the respondent No. 1 did not examine the Medical Practitioner i.e. Dr. M.K. Inamdar in support of his application. There is absolutely no material on record to show that he was admitted in Ashwini Hospital, Akluj and was treated during the relevant period i.e. from year 2000 to 2007. The diabetes and blood pressure could not be the medical reasons which might have prohibited the respondent No.1 from attending the proceedings before the trial Court of filing of the appeal before the District Court. The period of his treatment on account of heard-disease, however, could have been taken into account as sufficient cause for the purpose of condonation of delay. The above averments in the application do not show as to since when he was treated by Dr. Inamdar for the alleged heart disease. There is no tangible material to hold that all along for seven (7) years, he was unable to move away from the native village and could not have contacted the advocate for filing of the appeal. The learned Adhoc District Judge-2 simply perused the medical papers and angioplasty report in particular. The ( 5 ) {wp4171-09} learned Adhoc District Judge has observed that since 2001, the respondent No. 1 was required to obtain the medical treatment. It is pertinent to note that the exparte decree was rendered in September, 2000 and thereafter, till 2001, there was no medical treatment availed by the respondent No.1. The learned Adhoc District Judge observed : "Considering this documentary evidence and affidavit of the applicant it appears that due to the ill- health and diseases of applicant he could not file appeal against the Judgement and decree of RCS No. 77/2000 within time. It also appears that the delay caused for filing appeal of 7 years one month and eight days is explained by the applicant giving just reason and just excuse. It appears that right of applicant is involved in subject matter of RCS No. 77/2000 and hence, it is necessary to give him opportunity to file appeal and to challenge the Judgement and decree of RCS No. 77/2000. The delay does not appear intentional one. However, at the same time it is also to be considered that due to this delay caused by applicant to file appeal, inconvenience is caused to the respondent. Hence, the applicant needs to be saddled with costs. With this, I answer point No. 1 in affirmative. In the result, I pas the following order." ( 6 ) {wp4171-09} 7. There cannot be any duality of opinion that the explanation for the delay is required to be given appropriately and to the satisfaction of the concerned Court. At the same time, it is impermissible to accept any kind of explanation which is not "sufficient" for the purpose of granting such application. The learned Adhoc District Judge-2 simply observed that the delay of 7 years 1 month and 8 days is explained by the respondent by giving just reason and just excuse. Indeed, there is nothing, except the affidavit of the respondent No.1 and some medical papers, which are not admissible per se, to infer that he was unable to prosecute the appeal for such a long-drawn period of about seven (7) years and one month. 8. Learned counsel for the respondents would submit that in identical matter (Writ Petition No. 2296/2009), a Single Bench of this Court held that condonation of the delay was proper and unless it is found that the discretion used by the appellate Court was exercised in a perverse manner, it would not be permissible to interfere in such exercise of the discretionary powers. It is worthwhile to mention that in the given case, the learned Single Judge came to the conclusion that the District Judge has given cogent and sound reasons for ( 7 ) {wp4171-09} condonation of the delay. In the present case, the cogent and sound reasons are not ascribed by the learned Adhoc District Judge-2 so as to condone such a long-drawn period of delay. The delay is not properly explained though vague assertion is made that due to heart-attack, the respondent No.1 was unable to file the appeal. He did not clearly set out the period in which he was required to obtain medical treatment for so called heart-attack and for how much period, he was required to take the bed-rest after the medical treatment as indoor patient. The delay could not be condoned merely on the basis of vague statement in the application or the affidavit of the respondent No.1. His interested statement could not be the ground for accepting the explanation. 9. Learned counsel for the respondents seeks to rely on certain observations in "Chandrakant Govind Sutar vs. M.K. Associates and another" 2003 (1) Mh.L.J. 1011. It is submitted by the learned counsel that the order dismissing the application for condonation of delay n filing of the appeal cannot be challenged by way of revision though the application allowing the condonation of delay can be challenged by way of revision application under section 115 (1) of the Code of Civil Procedure. This authority is inapplicable to the fact ( 8 ) {wp4171-09} situation of the present case. It does not curtail the writ jurisdiction of this Court in any manner. The learned counsel would further submit that there is no question of substantial nature involved in the petition. The interference of the High Court is not called for when the discretionary order is rendered by the trial Court. He seeks to rely on certain observations in "Mahindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others" AIR 1964 S.C. 1336. It is observed by the Apex Court that it is not open to the High Court, in the exercise of its revisional jurisdiction under section 115, to question the findings of fact recorded by a subordinate Court. Reliance is also placed on certain observations in "Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others" AIR 2002 S.C. 1201. The Apex Court held that the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order-XXII Rule 9 of the Code of Civil Procedure or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to party. The proposition that liberal approach is required to be taken in such a matter cannot be disputed. The expression "liberal construction" does not, however, imply that even though there is no satisfactory ( 9 ) {wp4171-09} reason assigned for the condonation of delay, yet, the application can be allowed. There has to be "sufficient reason" as indicated in section 5 of the Limitation Act for the exercise of judicial discretion. 10. In "State of Maharashtra & others v. Vithu Kalya Govari & others" 2008 (5) Bom.C.R. 323, a Division Bench of this Court held that the delay cannot be condoned when the party had not taken any action for years and allowed the matter to become barred by time. The application for condonation of the delay of more than two (2) years was filed in the given case. The Division Bench of this Court held that in absence of acceptable explanation, the delay cannot be condoned. The condonation of delay is always within the discretion of the Court, but the discretion ought to be exercised judiciously and not arbitrarily. In "Special Land Acquisition Officer (SIP) and another v. Jose Prazeres de Piedade Pinto and others" 2006 (4) Mah.L.J. 318, it has been held that mere statements regarding the movement of the file from one office to the other office, from one table to the other table cannot be construed as satisfactory explanation for the condonation of delay. Needless to say, the reasons for condonation of delay ought to be tangible, satisfactory ( 10 ) {wp4171-09} and acceptable. In the instant case, the learned Adhoc District Judge-2 failed to appreciate that particulars of the hospitalization of the respondent No. 1 were not at all stated in the application, nor Medical Practitioner was examined in order to prove such explanation. Obviously, the delay of 7 years 1 month and 8 days is too excessive. The delay exhibits lethargic and casual approach of the respondent No.1. He did not apply for setting aside the exparte decree. He could have engaged an advocate through his relative, but nothing was done within a reasonable period of time. Under these circumstances, the impugned order is unsustainable. The learned Adhoc District Judge-2 committed patent error while condoning the delay and the discretion is exercised injudiciously. 11. In the result, the petition is allowed. The impugned order is set aside. The Rule is made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp4171-09 ( 11 ) {wp4171-09}