IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 201 OF 2011 With CA/5560/2011 In SA/201/2011 VISHNU ABAJI GIRAM ` VERSUS RAMBHAU BABURAO MULEY, DIED THR. L.RS. BHASKAR RAMBAUMULEY AND ORS ... Advocate for Petitioners : Smt. Awchar S L Mr. M.B.Ubale h/f L.K.Pradhan Advocate for R-1 to 4. ... CORAM : S.S. SHINDE, J. Dated: December 19, 2011 ... PER COURT :- 1. Heard learned respective counsel for the parties. 2. Following substantial question of law will fall for consideration of present second appeal. a] “Whether the lower appellate court was correct in dismissing the miscellaneous petition on the ground that neither advocate of the appellant nor appellant was present when application for delay was called out for hearing.” b] Whether the lower appellate court is correct in rejecting the application for condonation of delay by making general observations that no specific evidence is placed on record and therefore, such application cannot be considered. 3. Learned counsel appearing for the appellant invited my attention to the ground no.7 and 8 in the Second Appeal and submitted that merely because advocate of the appellant was not present, cannot be a ground for rejection of the application for condonation of delay in filing first appeal. Learned counsel submits that advocate appearing for the appellant did not inform the date of hearing and as a result of which appellant remained absent, and therefore for the mistake of the advocate the appellant should not suffer. Learned counsel further submitted that death certificate of one Kalyani aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD Vishnu Giram placed on record and also certificate from Shivam Hospital, Jalna which certifies that, Mrs. Meena Vishnu Giram was suffering from psychological disturbance during the period of January, 2006 to December, 2007. Therefore, according to the counsel for the appellant, lower appellate court was not correct in holding that no any document or evidence is placed on record, therefore, submits that second appeal deserves consideration. 4. On the other hand, counsel appearing for the respondent submits that merely making averments in the application is not sufficient. Appellant herein did not enter into witness box. Advocate and appellant both of them remained absent on the date of hearing of this application. Therefore, lower appellate court has rightly rejected said application. He further submitted that unless documents are exhibited those documents cannot be read in the evidence and therefore, merely because some medical certificate was placed on record, that itself is not sufficient unless such documents are exhibited and stated on oath before the Court. Therefore, according to the counsel for the respondent, second appeal does not raise any substantial question of law for consideration and therefore, second appeal be dismissed. 5. Upon hearing counsel for the appellant and learned counsel for the respondent and upon perusal of the impugned order and other documents placed on record, and also original record made available for perusal, I am of the view that ends of justice would meet, if the Misc Application No.1/2009 is restored to its file and same is heard by the First Appellate Court afresh by giving opportunity to the parties to lead evidence. It is not in dispute that on the date on which application for condonation of delay was fixed for hearing, advocate of the appellant was not present. I find considerable substance in the argument of the counsel appearing for the appellant that advocate engaged before lower appellate court did not inform date of hearing of such application. Therefore, for the mistake of the advocate, the appellant should aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD not suffer. It is true that, it was duty of the appellant/applicant to enter into witness box and prove the contents of the application on oath, however, appellant remained absent on the date when application was fixed for hearing. Therefore, taking overall view of the matter, ends of justice would meet if the application No.1/2009 is heard denovo by the lower appellate court. Therefore, application No.1/2009 is restored to its file. The parties are directed to appear before the lower appellate court on 11th January, 2012. However, it is required to be considered that because of the mistake of the advocate of the appellant or absence of the appellant on the date fixed for hearing, some prejudice is caused to the respondent, however, it can be compensated by awarding some reasonable cost. Therefore, second appeal is allowed subject to depositing costs of Rs.5,000/- before lower appellate court by the appellants within three weeks from today. It is made clear that depositing such costs amount is condition precedent and lower appellate court should not proceed unless such cost amount is deposited. Respondent will be entitled to withdraw such amount of costs without any application. The counsel for the parties agree that the parties will appear before the lower appellate court on 11.1.2012. It is needless to mention here that lower appellate court will give reasonable opportunity of leading evidence and hearing to the parties. Such application will be decided within one month from 11th January, 2012. 6. In the result, second appeal is allowed. In view of disposal of second appeal, pending civil application, if any, does not survive and stands disposed of. R & P be sent back forthwith. ( S.S. SHINDE, J. ) ... aaa/-