1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8121 OF 2008 Smt.Khurushidbi Shaikh Nanhu Petitioner versus Sayyed Nawab Sayyed Ahmed and others Respondents Mr.Sagar Kasar for petitioner. Mr.M.M.Sathaye for respondents 1 to 3. CORAM : A.S.OKA, J. DATE : 22nd February 2010 PC : 1. Heard learned counsel for the petitioner and learned counsel for the respondents. On the last date the parties were put to notice that the petition will be taken-up for final disposal. 2. The petitioner who is the original defendant preferred an appeal before the District Court against a decree for possession passed in favour of the respondents in the suit filed by them. There was a delay in preferring the appeal. The delay was of 439 days. By the impugned order, the said application has been rejected by the learned District Judge. 3. The learned counsel for the petitioner made a grievance that the application for condonation of delay was summarily dismissed by the 2 learned District Judge when the advocate for the petitioner was absent. He pointed out that no opportunity was given to the petitioner to file further material on record. The learned counsel for the respondents opposed the petition by contending that there was a gross un-explained delay of 439 days and, therefore, no interference is called for. 4. I have given careful consideration to the arguments. In paragraph 5 of the impugned order, the learned District Judge has observed thus:- "5. When the application was called out for passing first order, Learned Advocate Mr.S.L.Deshpande is absent. As such, it would not have been possible for this Court to know if really the case has been made out by issuance of notice to the respondent/plaintiffs for condonation of delay." It appears from the impugned order that the application for condonation of delay was summarily rejected without issuing notice to the respondents. As a proposition of law it cannot be said that on every application for condonation of delay, the Court is duty bound to issue notice. However, looking to the averments made in the application, this was a case where notice ought to have been issued by the District Court. For substantiating the alleged grounds in the application, the petitioner could have always filed affidavits and material on record. 5. Hence, the impugned order will have to be quashed and set aside with a direction to the District Court to hear and decide the said application afresh. 3 6. Hence, I pass following order :- A) The impugned order dated 19th September 2008 is quashed and set aside and Civil Miscellaneous Application No.208 of 2008 is restored to the file of learned District Judge; B) The parties are directed to appear before the learned District Judge (1), Nashik on 22nd March 2010. Reply will be filed by the respondents to the said application within a period of four weeks from the said date; C) The application shall be decided afresh as expeditiously as possible. Ad-interim relief granted on 16th December 2008 by this Court will continue to operate till disposal of the application for condonation of delay; D) The writ petition is partly allowed in above terms. All contentions of the parties in the pending application are kept open. (A.S.OKA, J.)