1 sa803.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 803 OF 2010 Sharifa Bee w/o Shabbirshah, Age: 52 years, Occ: Agri., R/o. M.S.E.B. Quarter Mill Corner, Aurangabad, Tq. & Dist. Aurangabad & Ors. ...APPELLANTS VERSUS Rafiq s/o Babu Pathan, died through Legal heirs, 1A. Naushad Bee w/o Rafiq Pathan, Age: 50 years, Occ: Household., R/o. Karanjgaon, Tq. Vaijapur, Dist. Aurangbad & Ors. ...RESPONDENTS ... Mr. S.B. Kakade, Advocate for the appellants. Mr. V.B. Garud, Advocate for the respondents. ... CORAM: S.S. SHINDE, J. DATE : 9TH NOVEMBER, 2011 PER COURT : . The Second Appeal is filed challenging the order dated 16-10-2006 passed by the learned Adhoc District Judge-3, Aurangabad in M.A.R.J.I. No. 31 of 2005. 2 sa803.10 2. The learned Counsel appearing for the appellants urge that, the application filed by the appellant herein for condonation of delay in filing the appeal before the lower appellate Court came to be rejected on the ground that, no sufficient cause has been disclosed in the application for condonation of delay in filing the appeal. The learned Counsel for the appellants invited my attention to the contents of the application for condonation of delay which is placed on record at Exhibit-B from pages 20 to 23 of the compilation of the second appeal. The learned Counsel further invited my attention to the contents of para-3 to 5 of the said application and submitted that, certified copy of the order was applied on 26-04-2005. Certified copy of the order was received on 13-06-2005. The appellant was suffering from some ailment and therefore, he was advised by the Doctor to take rest and therefore, he could not contact to his Advocate and he had no knowledge about the receipt of the certified copy of the judgment and order. 3 sa803.10 The appellant tried to contact his Advocate, however, due to Christmas vacation, Advocate was out of station and the appellant could not collect the certified copy from his Advocate for preferring the appeal. . The learned Counsel appearing for the appellants invited my attention to the certificate issued by Dr. V.M. Kale dated 25-12-2005 and submitted that, since appellant No. 3 was suffering from ailment and therefore, the appeal could not be filed within time. The learned Counsel would submit that, valuable right of appeal of the appellants is defeated merely on the technicalities and therefore, this second appeal raises substantial question of law for consideration. 3. On the other hand, the learned Counsel appearing for the respondents submits that, in all there are three appellants and even if the case of appellant No. 3 is accepted, other two appellants 4 sa803.10 could have file the appeal within time. It is further submitted that, reason given in para-4 of the application that the appellant was suffering from heavy fever does not find place in the certificate issued by the Medical Officer. Therefore, the learned Counsel appearing for the respondents would submit that, the second appeal is devoid of any merits and same may be dismissed. He further submits that, even if the period which is mentioned in the medical certificate is taken as it is, appellant No.3 was suffering from ailment till 25-12-2005, however, the appeal is filed on 19-01-2006. Therefore, the learned Counsel for the respondents would submit that, the appeal may be dismissed. 4. I have given due consideration to the rival submissions. 5. Following substantial question of law arises for consideration in the present second appeal. 5 sa803.10 "Whether the lower Appellate Court would have dismissed the application for condonation of delay, though sufficient cause is disclosed in para-4 and 5 of the application for condonation of delay, thereby defeating substantial right of the appellants to file appeal?" 6. Upon hearing the learned Counsel for the appellants and learned Counsel for the respondents, I am satisfied that the case is made out by the appellants, sufficient cause has been disclosed in para-4 and 5 of the application for condonation of delay. It is not in dispute that the appellant No.3 was prosecuting the suit before the trial Court on behalf of all three appellants. Therefore, appellant No. 3 was actively prosecuting the proceedings before the lower appellate Court. 7. In my considered opinion, valuable right of the appeal of the parties should not get 6 sa803.10 defeated on hyper technicalities. 8. It is true that, if the appeal is filed belatedly after limitation period is over, some right is accrued in favour of the respondents, however, in the facts and circumstances of this case, suit which was filed by the appellants herein was for removal of encroachment. In case, right of appeal gets defeated because of delay in filing the appeal, that will permanently closed the doors of the appellants, to prosecute appeal, in that view of the matter, I feel it appropriate to allow the second appeal. However, delay in filing the appeal caused certain inconvenience to the respondents and also consumed their valuable time. Therefore, in the facts and circumstances of this case, it would be appropriate that the second appeal is allowed with costs of Rs.10,000/- (Rs. Ten thousand only). Said amount of costs to be deposited by the appellants before the lower appellate Court within one month from today. Accordingly, Second Appeal is allowed to above 7 sa803.10 extent subject to depositing costs of Rs.10,000/- (Rs. Ten thousand only) by the appellants within four weeks from today before the Court of Adhoc District Judge-3, Aurangabad. 9. Upon depositing the amount of Rs.10,000/- towards the costs, without any formal application, the respondents will be entitled to withdraw the said amount. 10. As a result, aforesaid Exhibit-1 in M.A.R.J.I. No.31 of 2005 stands allowed. Second Appeal stands disposed of. [S.S. SHINDE, J.] sut/NOV11