1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1217 OF 2008 IN SECOND APPEAL NO.461 of 2000 Smt.Babitai Bandu Kale .. Appellant V/s. Ganpat Sadu Dhapate & Ors. .. Respondents. Mr.Dilip Bodake for the Appellant/Applicant. Mr.J.S.Keni for Respondent Nos. 1 to 4. CORAM : R.M.SAVANT, J. DATED : AUGUST 13TH, 2008. P.C. By the above Civil application, the Applicant pray for restoration of the above Second Appeal which has been dismissed for non-prosecution on account of the conditional order dated 5th August, 2004. By the said order, a learned Single 2 Judge of this Court had directed the Applicant/Appellant to remove the office objections by 25th November, 2004. 2. On account of the non compliance of the said order, the said Appeal came to be dismissed for non-prosecution on elapse of the time on 25th November, 2004. The instant Civil Application has been filed on 27th July, 2008. 3. It is the case of the Appellant that the earlier Advocate who was appearing for the Appellant/Applicant has never intimated the Applicant about the conditional order dated 5th August, 2004. The Appellant/Applicant being a lay person was not aware of the niceties of law and being not conversant with the Court procedure was not aware of the consequence of the non compliance of the orders passed by the Court as she was depending on the advise of her Advocate. The 3 reasons for the delay in filing the above Application for restoration, is also sought to be justified on account of Appellant/Applicant suffering from Knee Osteoarethritis, anemia and metabolic bone diseases and was therefore required to take regular treatment from different Doctors such as Physicians, Gastroentrologist, Rheumatologist since last more than 4 to 5 years. The Applicant being occupied by such ailments had not contacted her Advocate for a period of 4 to 5 years. 4. The Applicant/Applicant further states that on the Internet, the above Second Appeal has been shown as pending and it is only when she engaged the present Advocate in June, 2008 that the Applicant/Appellant became aware of the fact that the above Appeal has been dismissed for non prosecution on account of the conditional order dated 5th August, 2004. The Applicant/Applicant 4 therefore prays that the above Application be allowed and the Second Appeal be restored to file. 5. On behalf of the contesting Respondent Nos. 1 to 4 an Affidavit in reply of one Sadashiv Sadu Dhapte has been filed. In the said affidavit it has been stated that though initially the Applicant's/Appellant's suit had been decreed and 1/4th share were allowed to her in the suit property, the said decree was set aside by the Lower Appellate Court by its Judgment and order dated 11th April, 2000 against which the Applicant/Appellant had filed the above Second Appeal. It is further averred that the the suit properties are non-agricultural lands situated at village Kalas, Taluka Haveli, District Pune. It has further been averred in the said affidavit that the reasons cited by the Applicant/Appellant as suffering from an ailment are vague. As also the fact that the Applicant/Appellant had not met her 5 Advocate for a period of 4 to 5 years. It has further been averred in paragraph 10 that after the dismissal of the Second Appeal for non-prosecution, third party rights have been created by the said Respondents, with the consent of the Appellant/Applicant, and the restoration of the Second Appeal at this stage would have serious implications for the said Respondents and the third parties. It has been further averred in the said affidavit that the office objection was to the effect that (1) certified copy of the District Court grounds of Appeal not filed and (2) spare copy of the Second Appeal not filed. 6. To the said affidavit in reply, the Appellant had filed a rejoinder wherein the Applicant/Appellant has accepted in terms the position that she had created third party interest by executing a Power of Attorney in favour of one J.T.Agarwal of M/s.Agarwal construction for 6 development of some of the properties in question and that by notice dated 11th February, 2008, the said Power of Attorney has been canceled. 7. In the conspectus of the aforesaid facts I have heard the learned counsel for the parties. The learned Counsel Shri.Bodake appearing for the Appellant/Applicant submitted that the Applicant/Appellant being a lay person is not aware of the niceties of law, she became aware of the conditional order dated 5th August, 2004 only when the present Advocate informed her in June-2008 of the dismissal of the Second Appeal on account of the said conditional order. It is further submitted by Shri Bodake that even upto 26th June, 2008 on the Internet, the status of the Second appeal is shown as pending. The Applicant therefore was laboring under an impression that the said Appeal is pending. It is further submitted by Shri Bodake relying upon the documents relating to 7 the medical treatment, which according to him discloses the aliments of the Appellant/Applicant that since the Appellant/Applicant was undergoing the treatment for the said ailments, she had not contacted her Advocate for a period of 4 to 5 years. It is further submitted by Shri.Bodake that a substantial right of getting 1/4th share in the suit property is involved in the Second Appeal and in the event the Second Appeal is not restored a serious prejudice would be caused to the Appellant/Applicant. 8. It is submitted by Shri J.V.Keni the learned counsel appearing for the Respondent Nos.1 to 4 that the Appellant was not aware of the conditional order being passed is impossible to believe. The Appellant/Applicant who has contested the above litigation from the year 1996, and in various Courts cannot be said to be unaware as regards the niceties of law. Shri Keni further 8 submitted that it is impossible to believe that the Appellant/Applicant was not aware of the conditional order, considering the fact that the Second Appeal was admitted and an order was operating which was in favour of the Appellant/Applicant. He further submitted that the illness of the Appellant/Applicant is merely a ruse adopted by the Appellant/Applicant for getting the Second Appeal restored at this point of time. The learned counsel submitted that in the intervening period i.e. between the dismissal of the Second Appeal for non-prosecution till this date, third party rights have been created by the Respondent Nos. 1 to 4 in respect of the suit property and that to with the consent of the Appellant/Applicant. The Appellant had also admittedly, created third party interest by executing a Power of Attorney in favour of partner of M/s.Agrawal Construction Pvt.Ltd. Shri Keni therefore submitted that the conduct of the 9 Appellant/Applicant disentitled her to the discretion being exercised in her favour by restoration of the Second Appeal. 8. I have considered the rival contentions, it is well settled by catena of Judgments of the Apex Court that parties should be allowed to prosecute their remedy on merits and should not be thrown out on technical grounds. It is also well settled that in the matter of condonation of delay a highly technical and pendantic approach should be avoided and an approach which furthers the cause of substantial justice should be followed. The case of the respective parties would have to be considered on the touch stone of the said principles. Here it would be significant to note that it is the Applicant/Appellant who had filed the Second Appeal after having lost in the Lower Appellate Court and the decree in her favour was set aside. In my view, there is merit in the 10 submission of Shri Keni that it is impossible to believe that the Applicant/Appellant who had been litigating since 1996 was not aware of the conditional order dated 5th August, 2004 passed by the learned Single Judge of this Court. There is also merit in the submission of Shri Keni that only after finding that the commercial proposition of the development of property through the Agrawal Construction Company, having not fructified that the Appellant/Applicant filed the instant application in June, 2008. The fact that Respondent Nos. 1 to 4 and the Applicant/Appellant had created third party interests in the suit properties is therefore an accepted position between the parties. Infact the Applicant/Appellant in her affidavit in rejoinder has annexed a notice dated 11th February, 2008 by which the Power of Attorney executed by her in favour of Defendant M/s.Agarwal Construction has been canceled. 11 9. In my view, therefore the above Application for restoration has been filed only after Applicant/Appellant cancelled the said Power of Attorney on 11th February, 2008. The above application as rightly contended by the Respondents is speculative in nature. As regards the case of the Applicant/Appellant that on account of her illness she could not contact her Advocate for a period of 4 to 5 years, in my view, the said reasons is vague. It has not been stated that the Applicant/Appellant was immobilized. Merely stating that she was not able to contact her Advocate for a period of 4 to 5 years would not suffice in the context of the huge delay which is sought to be condoned. The Applicant also cannot fully refuge under the status shown on the Internet in view of the disclaimer clause. 10. The matter can be seen from another angle, 12 namely the restoration of the Appeal at this stage would cause serious prejudice to the Respondent Nos.1 to 4 and the persons in favour of whom the said Respondents had created third party interest. The prejudice i.e. likely to be caused to the other side is also one of the tests laid down by the Apex Court whilst considering such an application. In the context of the undisputed position that Respondent Nos. 1 to 4 have created third party interests in respect of the suit property in the intervening period, between the year 2004 and 2008, the said circumstances would be a relevant consideration whilst considering the above application for restoration. In my view the conduct of the Applicant/Appellant disentitles her to any discretion being exercised in her favour. 11. In the facts and circumstances, as above no reliefs can be granted to the Applicant/Appellant in the above Civil Application. 13 12. The Civil Application is, accordingly, rejected. [R.M.SAVANT, J.]