1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7693 OF 2008 Sou.Mumtaj Gani Mulla & Ors. ..Petitioners. V/s. Bajirao S. Vasudeo. ..Respondent. Mr.Vijay Killedar for petitioners. Mr.G.M.Savagave for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr. Savagave waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith by consent. 4. This Petition takes exception to the Judgment and Order passed by the District Judge-1, Kolhapur dated 29th July, 2008 in Misc./Review Application No.19 of 2007 and also Order dated 9th July, 2007 below Exh.1 in MCA 28 of 2006. The background in which the aforesaid orders have been passed on Applications taken out by the Petitioners is that a 2 decree came to be passed by the Trial Court in the suit filed by the Respondent/Plaintiff on 20th July, 2006. Whereunder the Petitioners were ordered to pay Rs.75,000/- to the Respondent alongwith interest at the rate of 9% per annum thereon till realisation of the decretal amount. The Petitioners challenged the said decree by way of appeal on 27th September, 2006. As there was delay in filing the appeal, the Petitioners filed application for condonation of delay of 37 days, which however, was rejected on 9th July, 2007. The Court below proceeded on the statement made by the Counsel for the Petitioners that the Petitioners were not wanting to lead any evidence. The explanation offered by the Petitioners that they had no means and were illiterate person, staying in remote village came to be discarded. After the dismissal of the application for condonation of delay, the Petitioners took out review Petition before the same Court pointing out that during the pendency of condonation of delay application, one of the Petitioner had met with an accident and was incapable of giving instructions to the advocate engaged who appeared on behalf of the Petitioners. The said ground did not find favour with the lower Court to entertain prayer for review of its earlier order. 3 4. After having considered rival submissions, I have no hesitation in taking the view that the events unfolded that one of the Petitioner having met with an accident resulting in inability of the Petitioner to instruct their advocate is a sufficient cause, for which the Order passed by the Court below will have to be overturned. At the same time, the parties will have to be relegated for reconsideration of the application for condonation of delay on its own merit by permitting them to adduce evidence in support of their respective stand, as to why the Appeal could not be filed within the period of limitation. This would meet the ends of justice. 5. However, this indulgence can be shown to the Petitioners only if the Petitioners were to deposit atleast the principal amount of Rs.75,000/- before the lower Court, which will be condition precedent for entertaining the Application for condonation of delay in filing appeal, which will be restored in terms of this order. That amount will have to be deposited before the lower Court within four weeks from today, failing which, it will be assumed that the earlier order passed by the lower Court dated 9th July, 2007 on the Application for condonation of delay stands revived and the application for condonation of delay stands dismissed in terms of 4 this order. This arrangement is offered to the Petitioners only by way of indulgence. 6. Needless to observe that the restored Exh.1 in MCA No.28 of 2006 be decided as expeditiously as possible preferably by end of July, 2009. 7. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)