1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1647 OF 2006. WITH CIVIL APPLICATION NO.5539 OF 2008. Sayed Husen Sayyed Dadamiya and others ... Petitioners. Versus Umarkhan Sarfarajkhan Pathan and others ... Respondents. ... Mr.N.C.Garun, advocate for the petitioners. Mr.S.P.Brahme, advocate for the Respondent Nos. 1,3 and 4. ... CORAM : V.R.KINGAONKAR,J. Date : 24.06.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioners are original defendants who have suffered decree rendered by learned 4th 2 Joint Civil Judge (S.D.), Ahmednagar in suit (RCS No.600/1992). The Respondents filed suit for declaration and mandatory injunction as well as possession of disputed portion of the suit property which was allegedly encroached over by the petitioners. The dispute pertained to Municipal House Property No.5516 (No.7518 new) and is part of City Survey No.4753. The case of the Respondents was that on 6.5.2002, the property was divided between the sharers in which their predecessor-in-title was allotted northern half share. They asserted that the petitioners encroached over a part of the property. The petitioners denied truth into all the material averments made by the Respondents/plaintiffs and resisted the suit. The petitioners, however, did not adduce any evidence. The suit was decreed. It appears from the trial Court's judgment that though the trial Court came to the conclusion that the Respondents were not entitled to seek possession of encroached portion as stated in the plaint as per finding of issue No.6, yet, decree for mandatory injunction was granted as per finding on issue No.7. Feeling aggrieved, the 3 petitioners preferred appeal which was delayed by about couple of years. They filed an application for condonation of delay on the ground that they and the Respondents are relatives inter se and that due to talks of settlement, they could not file the appeal. In the meanwhile, they asserted that after the talks of settlement had fizzled out, they decided to file the appeal. Their delay condonation application (Misc.Civil Application No.184/2000) came to be rejected. Hence, the petition. 3. Heard learned counsel for the parties. 4. The question is as to whether the petitioners furnished just and sufficient cause to claim condonation of delay. The length of the delay is not important while considering the application U/s 5 of the Limitation Act. What is important is to examine whether there exists "sufficient cause" which had caused the delay in filing the appeal. The conduct of the petitioners ought to have been taken into account by the learned Additional District Judge. The 4 petitioners resisted the suit. The petitioners filed affidavit to the effect that the Respondent No.1 had offered terms of settlement and, therefore,the suit could not be effectively resisted by adducing evidence. It was stated on affidavit that the Respondents got the exparte judgment by misleading the petitioners and keeping them in dark about the hearing. The petitioners contended that they were under the impression that the suit was likely to be compromised as per the assurance of the Respondent No.1. The Respondents did not file any affidavit so as to dislodge the version of the petitioners in this behalf. It is true, no doubt, that the delay prima facie appears to be excessive. Still, however, if there is some material to show that the delay is unintentional and was probably due to lack of information to the petitioners then the grounds for condonation of delay should have been favourably considered. In this view of the matter, the impugned judgment appears to be unsustainable and arbitrary. 5. In the result, the petition is allowed. 5 The impugned judgment and order is quashed subject to costs of Rs.3,000/- (Rupees three thousand) payable within three (3) weeks. If costs are not deposited in the trial Court within three (3) weeks, the Writ Petition will be deemed as dismissed. Rule made absolute. The Respondents will be at liberty to withdraw the costs if deposited. (V.R.KINGAONKAR,J.) asp/office/wp164706