1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.17 OF 2008 Shri Shrikrishna Narayan Londhe & ors ..Petitioners V/s. Smt. Yamunabai Vitthal Daundkar & ors ..Respondents Mr. A. P. Vanarase , Advocate, for the Petitioners Mr. Y. J. Master, Advocate, for Respondent No.1 Mr. P. J. Pawar, Advocate, for Respondent No.4 CORAM : A.S.OKA, J. DATE : 22ND APRIL, 2010 P.C. . Heard the learned Counsel appearing for the Petitioners and the learned Counsel appearing for the Respondent Nos.1 and 4. There are Affidavits filed by the Respondent Nos.3, 5, 6, 7, 8, 10, 11 and 12. They are supporting the Petitioners. Affidavits to that effect have been filed on record. The other Respondents are served. The challenge in this Writ Petition under Article 227 of the Constitution of India is to an Order dated 12th October, 2007 passed by the learned Ad-hoc District Judge, Baramati in Civil 2 Miscellaneous Application No.11 of 2007 by which an application for condonation of delay of 869 days in preferring an Appeal against the decree passed in the suit filed by the 1st Respondent for partition and separate possession was rejected. Various grounds have been set out in the application for condonation of delay. Reliance is placed on a Medical Certificate. The learned Counsel appearing for the Petitioners has taken me through the impugned Order and the findings recorded by the trial Court. The learned Counsel appearing for the 1st Respondent invited my attention to the finding recorded in paragraph 12 as regards the Medical Certificate dated 22nd January, 2007. His submission is that the Doctor concerned has not been examined and therefore, a finding has been recorded by the Appellate Court that the Certificate has been procured in order to practice fraud on the District Court. He submitted that the medical practitioner was not examined as the medical practitioner who has purportedly issued a Certificate on 22nd January, 2007 was not in existence. He stated that he has no objection if an opportunity is given to the Petitioners to examine the Medical Practitioner as the truth will come out. 3 2. Remanding the application for a fresh hearing with permission to the Petitioners to examine the Medical Practitioner may delay the proceedings further. The learned Counsel appearing for the Petitioners submitted that subject to payment of heavy costs, the delay can be condoned and the Appeal can be ordered to be heard in a time bound schedule. However, the learned Counsel appearing for the 1st Respondent states that an order of remand be passed and the Petitioners may be permitted to examine the alleged Medical Practitioner so that the fraud played by the Petitioners will be established. 3. In view of the aforesaid submission, it is not necessary to deal with the other aspects of the matter. An order of remand will have to be passed to enable the Petitioners to examine the concerned Medical Practitioner for proving the Medical Certificate dated 22nd January, 2007. It is true that the Petitioners ought to have examined the said Medical Practitioner when there was a challenge to the said Medical Certificate. However, only on the basis of failure to examine the Medical Practitioner, a finding of fraud cannot be recorded. 4 As a result of the Order of remand, prejudice will be caused to the 1st Respondent. Therefore, while passing an Order of remand, the heavy costs will have to be imposed on the Petitioners. Amount of costs is quantified at Rs.7,500/-. 4. Hence, Petition is disposed of by passing the following Order. (i) The impugned Order dated 12th October, 2007 is quashed and set aside and Civil Miscellaneous Application No.11 of 2007 is restored to the file of the District Court. (ii) A limited Order of remand is passed to enable the Petitioners to examine the concerned Medical Practitioner for the purpose of proving the Medical Certificate produced by them on the record of the delay condonation application. (iii) The parties are directed to appear before the learned District Judge – 1, Baramati, District Pune on 21st June, 2010. On the application made by the Petitioners, the District Court will issue witness summons to the concerned Medical Practitioner. It will be the responsibility of the Petitioners to take the summons by hand and to serve the summons to the concerned Medical Practitioner and to procure the presence of the Medical Practitioner. (iv) The Appellate Court will decide the delay condonation application afresh as expeditiously as possible and in any event, on or before 30th September, 2010. 5 (v) All contentions of the parties on merits of the application are expressly kept open. (vi) The Petitioners shall pay costs of Rs.7, 500/- to the 1st Respondent on or before 21st June, 2010. The deposit of the amount with the District Court within the time provided under this Order will be treated as sufficient compliance. If the amount is not paid within stipulated time, the impugned Order will stand and the Petition will stand dismissed. (vii) Writ Petition is partly allowed in above terms. (viii) It is made clear that the parties, who are represented by Advocates in this Court will not be served with a fresh notice of the delay condonation application and the parties are under obligation to appear before the appropriate Court on Monday 21st June, 2010 at 11.00 A.M. (A.S.OKA, J.)