(1) SA. 561.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 561 OF 2009 Deelip S/o Sakharam Kharate, Age : 42 years, Occu.: Agri., R/o Kautha, Tq. Basmath, Dist. Hingoli .. Appellant VERSUS Ramesh S/o Manik Suryawanshi, Age : 50 years, Occu.: Agri., R/o Kautha, Tq. Basmath, Dist. Hingoli .. Respondent AND CIVIL APPLICATION NO. 3903 OF 2009 IN SECOND APPEAL NO. 561 OF 2009 Deelip S/o Sakharam Kharate .. Applicant VERSUS Ramesh S/o Manik Suryawanshi .. Respondent Mr. S.V. Mundhe, Advocate for the appellant-applicant Mr. P.R. Katneshwarkar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 10TH AUGUST, 2009 ORAL ORDER:- 1] This appeal is filed against the order of the Ld. Addl. District Judge passed on the Miscellaneous Civil Appeal, requiring judicial inquiry, no. 21 of 2007, rejecting the appellant’s application seeking condonation of delay in filing of the Civil Appeal. . The respondent had filed the suit for recovery of possession of 14 Guntha agricultural land against the appellant by way of Regular Civil Suit no. 124 of 2002. The appellant engaged a lawyer but (2) SA. 561.2009 thereafter, did not take any steps to contest the suit. The respondent examined witnesses in support of his case of encroachment and got his suit decreed in August, 2005. In November, 2007, the appellant appeared before the Execution Court in response to the execution proceedings that were initiated by the respondent-decree holder. Within one month therefrom Misc. Civil Appeal no. 21 of 2007 was filed for condonation of delay of 2 years 3 months and 3 days in filing of the appeal. 2] The manner in which the application was drafted itself probably prompted the learned District Judge-1, Basmathnagar to reject it. The appellant did not give details as to why he did not file written statement, did not contest the suit and on what date he had left his village for Mumbai etc. It was his case that between 2005-2007 he had gone to Mumbai to earn his livelihood. The lower Court mentioned that the appellant did not adduce documentary evidence to show that he was away from his village for earning his livelihood and had gone to Mumbai for a period of 2 years etc. 3] The impugned order is not incorrect, but I am inclined to allow the appeal. The respondent’s complaint regarding encroachment was quite peculiar and the appellant deserved an opportunity to contest such suit. Having regard to the fact that the appellant is an uneducated labourer, and since he (3) SA. 561.2009 has rather belatedly, decided to contest the claim of the respondent, he deserves one more opportunity but such indulgence would cost the appellant a sum. I think, he should be saddled with costs of Rs.10000/-. Following order would suffice the ends of justice: . On the appellant’s depositing Rs.10000/- in the trial Court, on or before 22.9.2009, the impugned order as well as the judgment and decree passed in Regular Civil Suit no. 124 of 2002 shall stand set aside. The appellant shall have liberty to file written statement and thereafter, the trial Court shall decide the suit but shall make endeavour to dispose of the suit, as far as possible within six months. In case the cost is deposited in the trial Court, the same shall be paid to the respondent. In case the cost is not deposited as directed above the appeal shall stand dismissed without further reference to the court. 4] Second Appeal stands disposed of with the above directions. In view of the order passed in Second Appeal no. 561 of 2009, Civil Application no. 3903 of 2009, seeking stay does not survive and the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp