1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 5557 OF 2004 IN SECOND APPEAL STAMP NO. 621 OF 2004 1. Govinda S/o Tatya Khandale .. .. Applicants Versus 1. Shantabai W/o Kashinath Pawar and others .. .. Respondents Shri S. S. Choudhary, Advocate for the Applicant. Shri A. P. Yenegure, Advocate h/f Shri P. S. Patil, Advocate for the Respondent No. 2. CORAM : N. D. DESHPANDE, J. DATE : 17TH DECEMBER, 2009. ORAL ORDER : 1. Heard Shri Choudhary, learned counsel for the applicant/appellant. He made a request for filing affidavit of applicant Govinda duly sworn on 03.02.2004 to substantiate his claim and contention in application for condonation of delay. Inadvertently it remained in the file of advocate and today when the application came for hearing, it was noticed and same is now allowed to be filed. It is considered as part and parcel of the said application for condonation of delay. 2 2. The said application for condonation of delay purported to be under Section 5 of the Limitation Act 1963 is for extension of period of 769 days, the additional time which he took for filing second appeal mainly on the ground that his advocate Shri Yewtekar did not file it despite the instructions and papers were handed over to him. He come to know about it only after he received a notice of darkhast proceeding filed by the plaintiff/respondent. So he made inquiry, and it revealed that his advocate at Aurangabad was no more and, therefore, appeal could not be filed. 3. Then he started preparation afresh for filing second appeal and applied for certified copies, again reconstructed his papers and engaged another lawyer. So delay occasioned which was beyond his control and which he could not foresee. He was under bonafide belief that appeal was filed by his advocate. 4. The application is supported by his affidavit which was also filed subsequently in the month of February, 2004 which is taken on record today and the varsity and credibility of said affidavit need not to be doubted as the party had filed appeal afresh. 5. It is also seen from the record that he filed appeal within 10 days after he received the certified copy of the impugned judgment. On merits of the appeal Shri Choudhary, learned counsel for the applicant submitted that, Trial Court judgment of dismissal of suit is in favour of defendant. However, the appeal of 3 the respondent was allowed for the relief of declaration, possession and injunction. So he urged for condonation of delay. Considering these facts on record, in my opinion the case is made out for extension of period of limitation and his explanation can be accepted as sufficient cause for not preferring the appeal within a time of 90 days. In that view of the matter, the application is allowed. The delay of 768 days is condoned. The appeal be registered and numbered. [ N. D. DESHPANDE, J.] bsb/Dec.09