1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6304 OF 2008. Kum.Basanti d/o Kashmirilal Gupta ... Petitioner. Versus Kashmirilal S/o Harising Gupta and others ... Respondents. ... Mr.S.V.Natu, advocate for the petitioner. Mr.R.S.Dhamangaonkar, advocate for Respondent No. 6. ... CORAM : V.R.KINGAONKAR,J. Date : 08.03.2010. PER COURT 1. Rule. Rule made returnable forthwith and heard finally by consent. 2 2. By this petition, the petitioner impugns order rendered by learned Civil Judge (S.D.), Jalna, on her application for condonation of delay bearing MARJI No.125/2007. The application was filed U/s 5 of the Limitation Act, 1963 seeking condonation of delay of 102 days which was caused in filing application for restoration of the suit (Spl.C.S.63/2000) on account of her non-appearance. The application came to be dismissed vide the impugned order. 3. The petitioner had filed a suit (Spl.C.S.No.63/2000) for partition and separate possession alleging that a house property bearing CTS No.4131/15 (MCH No.4282 to 4289), situated in Bharatnagar locality at Jalna is the joint Hindu family property of her father, brother and herself. She sought declaration that the house property was legally attachable in the course of execution of a decree which was obtained by Respondent No.5 - M/s Radhesham Laxminarayan & Co. against her father etc. 4. The suit was scheduled for hearing on 3 22.6.2007. It was dismissed because the petitioner was found absent at the time of hearing. She filed application dated 1.11.2007 for restoration of the suit along with delay condonation application. She contended that she was unable to attend the Court due to her pregnancy and because she delivered a female child on 21.4.2007 and due to post delivery, medical rest required. She asserted that she came to know about the dismissal of the suit when a public notice was issued in a local newspaper regarding the execution of the decree by way of auction of the house property. Therefore, she contacted her advocate and received necessary information. She obtained certified copy of the orders and filed the restoration application. 5. The trial Court held that the cause shown by the petitioner was insufficient. The trial Court held that the suit was fixed for effective hearing since 8.9.2005 and, therefore, she could not have claimed that it was fixed for effective hearing in the month of June 2007 and of which she had no knowledge. The trial Court 4 held that she tried to protract the litigation and, therefore, the cause of delay shown by her was unacceptable. The trial Court also observed that the petitioner is given in marriage at Beed and had been to Jalna for delivery of the child. Still, because she did not produce any medical certificate to show that she was advised complete bed rest for a period of 3/4 months after the delivery, cause shown by her was insufficient. Hence, the application was dismissed. 6. Heard learned counsel. 7. The question involved in this petition is whether the explanation given by the petitioner could be regarded as unfounded and totally insufficient so as to reject the delay condonation application filed by her. 8. The reply affidavit of the D.H. would show that the merits of the suit proceedings are highlighted. It is contended by the D.H. that the Spl.C.S.63/2000 was filed by the petitioner at 5 the behest of her father and in order to create unnecessary impediment in the execution of the decree which was obtained by the Respondent No.6 Company. 9. It is worthy to be mentioned here that the fact that the petitioner delivered a female child on 2l.4.2007 is stated by her on affidavit. It appears that she had no reason to speak lie about the delivery. She admitted that she did not produce Medical certificate from the Medical Practitioner regarding advised to take complete rest for 2/3 months after the delivery. This admission seems to have been blown out of proportion by the trial Court. It is of common knowledge that the delivery of a child does require a female (mother) time to recover and commence her regular activities. It does not require any specific medical certificate to know that the post birth debility and weakness may be continued for period of 1/3 months as per the physical fitness of the mother. The merits of the suit filed by the petitioner could not be considered by the trial Court while rejecting her 6 application. The merits of her case may be considered at the time of considering her request for any interim relief but it can not be a ground to disallow her from prosecuting the suit if the delay is properly explained. The trial Court overlooked the fact that the suit proceedings had been stayed in view of order passed in Writ Petition No.708/2005. It appears that said Writ Petition was dismissed in the month of January 2007. Obviously, the trial Court committed factual inaccuracy while observing that the suit was scheduled for effective hearing since 8.9.2005. 10. In "Collector, Land Acquisition, Anantnag and another Vs. Mst.Katiji and others" AIR 1987 Supreme Court 1353, the Apex Court held that the Court should adopt liberal approach while considering the request for condonation of delay. The Court is required to take pragmatic view of the matter and unless there is total absence of plausible explanation for the delay, the request should not be normally turned down. It is well settled that a litigant is not likely 7 to gain anything by causing delay in filing of such application. The application for restoration of the suit was filed after publication of the notice for auction of the house property. Whether to grant any interim relief inspite of such auction proceedings or to reject it because the petitioner might not have been able to make out a prima facie case, is altogether different issue. 11. The petitioner is a married woman. Her precarious position due to the delivery of the second female child at the relevant time and post delivery rest period, appear to be the sufficient reasons for the delay. The delay does not appear to be intentional one. Under the circumstances, the impugned order is against the settled norms and legal parameters. 12. In the result, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp630408 8