1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR ... SECOND APPEAL NO. 245 /2009 (Jiwan s/o Kaeadeo Bhagat vs. Sanyog Ramji Fulzele ) ------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Mr Anjan De, Adv.for appellant Coram : A.P.BHANGALE, J. Dated : December 9, 2009 Heard learned Advocate for the appellant, at length. 2. The instant Second Appeal stems from rejection of Miscellaneous Application No.75/2007 seeking condonation of delay in filing Regular Civil Appeal. It is the grievance of the appellant that by the impugned order passed by learned Ad-hoc District Judge -1, Chandrapur, by order dated 31.3.2008 making a reference to the ruling in Kamalbai Narasaiyya Shrimal and another vs. Ganpat Vithalrao Are reported in 2007 (1) Mh. L.J. 807 rejected the application on the ground that there is no sufficient ground to condone the delay of seven months and five days. Learned Advocate for the appellant do not dispute that merely poverty cannot be a ground for condonation of delay. However, it is contended that vital civil rights are involved and are to be decided but because the appellant could not file appeal for certain reasons, such as, he 2 had weak financial condition; was not getting work of bar bending on regular basis though was rummaging for the same, for marriages of daughters, expenses on account of illness of family members, medicines, clothes, could not collect money and as a result delay of about 7 months and five days has occurred in filing the Appeal. 3. I have perused the ruling referred to in the impugned order in Kamalbai (supra). It appears that this Court had considered the expression “sufficient cause” as contemplated under section 5 of the Limitation Act and cautioned against excessive liberal approach merely on the ground of poverty of the appellant. In that case, poverty was pleaded as a ground for condonation of delay with averments that the petitioner could not prefer appeal within the prescribed period of limitation due to poverty. Under these circumstances, making observations that there was absolutely no whisper about the so called illness of the petitioner no.1 during relevant period, as also making reference to averments about poverty and that there was an unintentional delay because of poverty and helplessness and if that is not condoned, the appellant will suffer irreparable loss, the Court dismissed the petition. It appears that this Court has made reference to the ruling in M Balakrishnan vs. M Krishnamurthy reported in (1998) 7 SCC page 123. in which the Apex Court has held thus : “Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a 3 want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory”. 4. In the present case, although it appears that the delay of about 7 months and five days has occurred, the averments palpably show not only the ground of poverty but problems which applicant had to face on account of inability to get work of bar bending regularly as also illness of family members, expenses required for their medicines, as also marriages of daughters. Under these circumstances, looking into the observations made by the Apex Court as above, it would be in the interest of justice if delay is condoned for the simple reason that each case will have to be considered independently by application of mind to the facts and circumstances of each case. The discretion to condone delay as such, may be exercised in favour of the appellant in this case as it appears to have been reasonably explained in the application. Hence the delay is condoned. The impugned order dated 31.3.2009 passed by Ad-hoc District Judge-1, Chandrapur is set aside. The First Appellate Court is directed to hear and decide the Regular Civil Appeal on its own merits and in accordance with law. Second Appeal is allowed accordingly. JUDGE. sahare