( 1 ) sa343.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 343 OF 2011 WITH CIVIL APPLICATION NO. 1393 OF 2010 Smt. Narmadabai w/o. Soma Bhoi & Ors. .. Appellants Versus Lotan Makdu Bhoi & Ors. .. Respondents Mr. V.B. Patil, Advocate for the appellants. Mr. U.S. Malte, Advocate for the respondents. CORAM : A.V. NIRGUDE, J. DATED : 10.08.2011 P.C. :- 1. Heard learned Counsels for the parties. The substantial question of law arising in this appeal is :- “Whether the learned Judge of the Court below committed error in appreciating evidence on record while passing the impugned order?” 2. The facts leading to the litigation are as under :- 3. The respondents are plaintiffs in suit bearing No. R.C.S.No. 20 of 1991, which was pending before the Civil Judge, Junior Division, Erandol. The suit also involved a counter-claim filed by the appellants who were defendants ( 2 ) sa343.11 there. The appellants had appointed their brother one Maharu as their attorney for looking after the litigation, but Maharu died in 2002. Thereafter, when the suit was taken up for hearing, the appellants remained absent and did not lead any evidence. With the result, the suit was decreed and the counter-claim was dismissed. The case of the appellant is that they learnt about the disposal of Civil Suit in 2006 and thereafter rather belatedly they approached the District Court for filing the appeal. Obviously, the appeal was delayed by about 22 months and the appellants moved an application for seeking condonation of delay. They stated that after Maharu’s death, they were not attending the case because, firstly their advocate did not inform them dates of the case, secondly they were not staying at Dharangaon, but had gone away in search of livelihood and thirdly they are illiterate. They also mentioned that all the men of their family stayed away from Dharangaon and only women stayed there. They said that probably the women of their family had received earlier notices of execution proceedings. Even the learned advocate appearing for the respondent staunchly opposed the application. He mentioned that the respondents are owners of the suit property – a house at Dharangaon. He said that it is valuable property lying in the midst of the town and that the appellants are interested in prolonging the case because they are wrongfully utilizing the property as their residence. He pointed out that for last more than 15 years, no compensation has been paid to his clients. ( 3 ) sa343.11 4. The learned Judge did not accept this case as sufficient for condoning the delay. The learned Judge, however, in my view, committed a gross error in appreciating the circumstances. The learned Judge lost site of the fact that this suit was pending since 1991 and was disposed of after 14 years in 2005. If litigation initiated by respondent/plaintiff for possession of house property could prolong for such a long time, then it could be said that the respondents were also partly responsible for the delay that has caused in disposal of the civil suit. The delay of 22 months in filing of the Civil Appeal in comparison was condonable and should have condoned. Even from the other pleas based on assertion that due to Maharu's death and since the men had gone away from the village the appellants could not file the appeal in time, a strong case for condonation is made out. The third and equally convincing reason is that the appellants did not stand to gain much in not attending the case especially when their own counter claim was at stake. 5. I am inclined to hold that the learned Judge of the first appeal Court committed gross error in believing the appellants’ case. He could have put them to terms and could have condoned the delay. The learned Judge also erred in ignoring one more important circumstance in the case that though this is a case in respect of immovable property, the appellants did not lead evidence before the Trial Court. A party would not purposely avoid giving evidence in a case where stakes are high and immovable property is involved. ( 4 ) sa343.11 Therefore, I am inclined to allow the appeal and condone the delay. 6. The appeal is allowed. The delay is condoned. The learned Judge of the first appeal Court shall now decide the appeal on merit. The appellant shall deposit Rs.7500/- (Rupees Seven Thousand Five Hundred Only) as costs to be paid to the respondents, in the Court of District Judge, on or before 19th September, 2011. In case the amount is not deposited within stipulated time, the appeal shall stand dismissed. There shall be no further extension of time to deposit the costs. 7. In view of disposal of the Second Appeal, Civil Application for stay does not survive and stands disposed of. 8. The learned Judge of the First Appeal Court shall not be influenced by the observations made in this order, while deciding the appeal. [A.V. NIRGUDE, J.] snk/2011/AUG11/sa343.11/ok