1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 492/2010. Sahebrao Vishram Wahekar VERSUS Sau. Mankarnabai Ramdas Kanhe ________________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : R.M.SAVANT, J. DATED : 18.01.2011. Heard Ms. Vijaya Thakre, the learned Counsel for the appellant and Shri Abhay R. Sambre, the learned Counsel for the respondent. By the above Second Appeal, the judgment and order dated 20.04.2010 passed by the learned Principal District Judge, Buldhana in M.J.C.No.1/2009, by which the said M.J.C. came to be rejected is under challenge. The said MJ.C. was filed by the appellant in the appeal filed against the judgment and decree passed on 30.02.2009 by the learned Civil Judge, Junior Division, Mehkar in Regular Civil Suit No. 26/2005. The appellant herein is the original defendant in the said suit which was filed by the plaintiff/respondent for possession of 99 R of 2 agricultural land and for mesne profits. The case of the respondent herein was based on a gift deed which was executed by the father of the respondent on 29.01.1979, pursuant to which the revenue record was corrected so as to stand in the name of the respondent. The said Regular Civil Suit No. 26/2005 came to be decreed in favour of the respondent by judgment and decree dated 30.06.2009. In the context of the challenge raised in the above Second Appeal, it would be necessary to note few facts which have transpired after the said decree came to be passed. It is pertinent to note that after the said Regular Civil Suit No. 26/.2005 came to be decreed, the appellant had filed Regular Civil Suit No. 58/2009 claiming injunction against the respondent herein sometime in June, 2009. In the said suit, an exparte ad-interim injunction came to be granted by the trial Court i.e. Civil Judge, Junior Division, Mehkar on 23.07.2009 and notice came to be issued to the respondent herein. Pursuant to the said notice, the respondent herein appeared and filed his written statement-cum-reply to the application for temporary injunction. The said temporary injunction came to be vacated by the trial Court by order dated 22.09.2009. Therefore, between the period 23.07.2009 and 22.09.2009 the appellant herein was diligently prosecuting the said Regular Civil Suit No. 58/2009 and as per the learned Counsel appearing for the respondent herein, the appellant had 3 appeared on as many as on 12 occasions before the trial Court from the date of filing of the suit till just prior to the filing of the appeal in the Appellate Court against the judgment and decree in the said Regular Civil Suit No. 26/2005. The appellant herein, after the injunction came to be vacated in the suit filed by him, has filed a Regular Civil Appeal against the said judgment and decree dated 30.06.2009 in Regular Civil Suit No. 26/2005. In view of the fact that there was a delay of 145 days in filing the said appeal, the appellant herein filed an application for condonation of delay i.e. M.J.C.No.1/2009 and the principal reason cited in the said application was illness of the appellant from 15.07.2009 to 15.11.2009. The said application for condonation of delay was considered by the learned Principal District Judge, Budhana and by referring to the facts as mentioned hereinabove, i.e. the filing of the Regular Civil Suit No. 58/2009 and its prosecution by the appellant herein between the period 23.07.2009 and 22.09.2009 the Appellate Court was of the view that the reasons mentioned by the appellant could not be accepted and that in view of the fact that the appellant was prosecuting the said Regular Civil Suit No.58/1009 between the said dates the reasons were false. The learned Principal District Judge therefore, did not deem it fit to exercise the discretion in favour of the appellant by condoning the delay of 145 days in filing the Appeal. 4 It is sought to be contended on behalf of the appellant that the delay was only of 145 days and the reason for the same is now sought to be attributed to the fact that the said Regular Civil Suit No.58/2009 was prosecuted by the appellant at the same place i.e. Taluq Mehkar as Regular Civil Suit No. 26/2005, whereas the appeal had to be filed at the district place i.e. at Buldhana, and therefore, the delay. In my view, the reason now sought to be given by the appellant is only stated to be rejected. It is well settled that it is not the extent of delay, but whether the reasons mentioned by the applicant constitute a sufficient cause. In my view the reasons mentioned by the appellant in his application before the Appellate Court are ex-facie false in the teeth of he having prosecuted Regular Civil Suit No.58/2009 contemporaneously during the same period during which he was supposedly ill. In my view, the observations of the Appellate Court that the facts of the present case do not warrant any exercise of discretion in favour of the appellant, does not warrant any interference at the hands of this Court. The Second Appeal is accordingly dismissed. No costs. JUDGE Rgd