:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 2376 OF 2006 Shri Balkrishna Martand Bhokare ...Petitioners Versus Shri Kaluram Dattatraya Shingare and anr. ....Respondents Anil L. Desai, Adv. for the petitioners. None for the respondents. CORAM: S.C.DHARMADHIKARI, J. 7th January, 2008. P.C. P.C. P.C. : : : 1. Heard Mr.Desai appearing for the petitioners. The office report shows that respondent nos.1 and 2 are served. None appears on their behalf. The petitioner is the applicant before the lower appellate court. He :2: :2: :2: filed Misc.Application No.442 of 2004 and prayed for condoning the delay in filing of a Reg.Civil Appeal. That Civil Appeal was directed against a judgment and decree dated 2.9.2006 in Reg.Civil Suit No. 1902 of 1992. It appears that the original plaintiff expired and initially an Appeal was preferred being Appeal No. 451 of 1999, by the very petitioner before me in his capacity as a Power of Attorney Holder, to challenge the said decree. That appeal was dismissed on 11.9.2003 by the District Judge holding that the original plaintiff who had granted the Power of Attorney having expired, the Power of Attorney in favour of the petitioner no longer survive in law. Hence, the Appeal filed by the present petitioner as a Power of Attorney Holder of the deceased plaintiff is not maintainable. 2. The petitioner has filed a fresh Appeal and that being barred by time applied for condonation of delay. The delay condonation application is dismissed on 29.11.2005, challenging that order the present petition is filed. :3: :3: :3: 3. Having perused the petition and the Annexures thereto, I am of the view that the Learned Ad-Hoc District Judge was in error in dismissing the application. The application is dismissed on the ground that the earlier Appeal has been dismissed by the court. The point of locus of the present petitioner to challenge the judgment and decree of the Trial Court has been raised and that is how in the opinion of the Learned Judge, the present appeal would not be maintainable. In my view, that reason could not have been assigned and put in issue for rejecting the application for condoning the delay. 4. The Learned Judge has dismissed the application by also observing that the petitioner has failed to produce the medical papers with regard to the illness of his sister. It is true that a supporting affidavit has been filed by the petitioner. The petitioner has specifically urged that his sister was hospitalised as she was suffering from cancer. Nobody disputes the date of admission in hospital and discharge. None of the contesting respondents filed any reply to the application for condoning the delay. :4: :4: :4: The Learned Judge was aware of the fact that respondent no. 1 appeared before him but did not oppose the application by filing a reply. Respondent no.2 did not remain present and the matter proceeded in his absence. In such circumstances, without any opposition from the other side and nobody disputing the correctness of the averments in the application for condoning the delay, the learned Judge in the peculiar facts of this case, could not have taken a hyper technical view. The delay in the present facts and circumstances deserves to be condoned. Accordingly the application for condonation of delay being Misc.Application No. 442 of 2004 is allowed. Delay in filing of the Appeal by the petitioner/applicant is condoned. The Appeal now shall be numbered and be heard in accordance with law. Since none have disputed the version of the Applicant-petitioner before me nor has anybody remained present to contest the petition. There will be no order as to costs. The order under challenge stands quashed and set aside. Rule made absolute accordingly. ********