1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CA NO.6858/2009 IN AO ST.NO.13142/2009 WITH CA NO. 6859/2009. (Mainukhan Khaja Khan Pathan Vs. Bhagwanrao Shinde and Anr.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.SB Bhapkar,Advocate for appellant; Mr.HV Patil, Advocate for Respondent No.1; Mr.KB Jadhav, Advocate for Resp.No.2. ___ CORAM : K.U.CHANDIWAL, J. DATE : 13 th January, 2010. ... 1) Heard learned Counsel for the parties extensively. 2) 242 days’ delay in filing Appeal from order is sought to be condoned. Normally such delay, if sufficiently explained, needs to be condoned. 3) The application spins in paragraph 4 that after receiving the knowledge in respect of disposal of the appeal, the applicant immediately collected the necessary documents and took legal advice and thereafter immediately filed 2 the appeal. This has been harped by the Counsel for the respondents to be a incorrect fact by inviting my attention to the proceedings initiated before the Assistant Charity Commissioner, and particularly dated 5th August, 2008 and 22nd September, 2008. On 5th August, 2008, obviously the appellant herein was consciously aware of the orders, as pursuant to the orders of the learned District Judge, appeared before the Assistant Charity Commissioner. On 22nd September, 2008, the appellant herein tendered his affidavit and he was subjected to cross-examination by the other side/respondents herein. 4) During the course of submissions, the Counsel for the respondents pointed the matter before the Assistant Charity Commissioner is at the fag end. He asserts, to stall said proceeding, present exercise is initiated. 5) At this stage of the matter, without admitting, in order to stall the 3 proceeding before the Assistant Charity Commissioner, this exercise is taken, the fact remains that the present appellant was consciously aware of disposal of the matter by the learned District Judge, directing the parties to appear before the Assistant Charity Commissioner, parties acted upon it and now the matter is ripe for final disposal. 6) Taking these aspects into consideration, the approach of the appellant cannot be said sincere or actuted by bona fide efforts. 7) Learned Counsel took recourse to the Judgment in the matter of Nilesh Vijay Deshmukh and Anr. Vs. Mathurabai Bhikanrao Deshmukh, deceased through L.Rs. Aruna Vijayrao Deshmukh ( 2005 (4) Mh.L.J. 481. This Court, in paragraph 10 of the Judgment, highlighted following six eventualities to be considered : “1.Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2.Refusing to condone delay can result 4 in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3.”Every day’s delay must be explained”, does not mean that a pedantic approach should be made. Whey not every hour’s delay, every second’s delay ?The doctrine must be applied in a rational common sense pragmatic manner. 4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5.There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 8) Even taking recourse to such situation, I find that the delay, on the part of the appellant herein is purposeful, deliberate and more lean to indicate, to dilute effect and efforts of the proceedings pending before the the 5 Assistant Charity Commissioner. In the circumstances, the delay is not sufficiently explained. Application rejected. Consequently, AO with CA for stay also rejected. 9) However, the remedies, if any, against the order of the Assistant Charity Commissioner, shall remain unbridle. (K.U.CHANDIWAL) JUDGE bdv/ca6858.09