1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO.4943/2008 Mahavir Tavnappa Dhole. ..Petitioner. -VERSUS- Gopal Pandit Chavan. ..Respondent ......... Mr.Amit Sale, Advocate for the Petitioner. Mr.Umesh Mankapure, Advocate for the Respondent .......... CORAM : S.C.DHARMADHIKARI, J. DATED : 17th APRIL, 2009. P.C. : 1. Rule. The Respondent waives service. By consent taken up for hearing at this stage itself. 2. Heard both sides. Perused the order of the lower Appellate Court refusing to condone the delay in filing of the Regular Civil Appeal. 3. The Petitioner was aggrieved by the decree of the Trial Court and therefore, filed the appeal. That appeal was delayed and therefore, Misc. Civil Application No.135/2006 was filed by the Petitioner/Appellant for delay condonation. That is rejected by the impugned order and therefore, this Writ Petition. 2 4. This Court while issuing notice directed the Petitioner to deposit a sum of Rs.10,000/- which was to be paid over to the Respondent/Plaintiff/ Decree Holder. That amount is deposited and should be paid over to the Respondent. 5. I have heard Shri Sale, appearing for the Petitioner and Shri Mankapure appearing for the Respondent. 6. Shri Mankapure submits that the delay is rightly not condoned because false statement is made in the application. The Petitioner is blaming his Advocate although he has fully participated in the trial. Subsequently, the ground of illness is made out and false certificate is annexed. Since the application lacks bonafides, it is rightly rejected. 7. On the other hand, Shri Sale has pointed out that the medical certificate shows that the Petitioner was ill from November 2005 to April 2006. Further, in the application it is pointed out that there was communication gap between the Petitioner and his Advocate. The Petitioner has pointed out that he would suffer grave loss and prejudice if he is not allowed to contest the claim on merits. 8. After hearing both sides, what is material in this case is the delay is of about five months and four days. The delay is sought to be explained on two grounds. There may not be substance in the explanation with regard to the communication gap with the Advocate but none the less the Petitioner was ailing for some time. He was under treatment. In these circumstances, the Court below could have 3 condoned the delay by directing the Petitioner to pay costs. The decree is dated 15.11.2005 and the Petitioner was ill from November 2005 to April 2006. In the facts peculiar to this case and by applying liberal principles and so also by compensating the Respondent, the delay is condoned. The order under challenge is set aside. The delay is condoned subject to the Petitioner paying cost quantified at Rs.10,000/- (Rupees Ten Thousand) to the Respondent, which amount is already deposited by the Petitioner and is permitted to be withdrawn by the Respondent. Additionally, the Petitioner should pay deficit Court fees within a period of four weeks from the date of receipt of the copy of this order. If compliance is made, the appeal should be heard on merits and in accordance with law. The petition is disposed of in the above terms. 9. Rule is made absolute accordingly. JUDGE