23cas1526-08.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1526 OF 2008 IN S.A.(ST.).NO. 20852 OF 2008 Shri Khandu R. Dugje & Anr. ... Applicants. V/s. Devidas Dattu Jadhav & Ors. ... Respondents. --- Mr. Atul Kore h/for Deshmukh for the Applicants. Mr. Girish Agrawal for Respondent Nos. 1 to 6. --- CORAM:- G.S. GODBOLE, J. DATED :- 29TH SEPTEMBER, 2011. P.C. : 1 Heard Mr. Atul Kore, Advocate holding for Mr.Deshmukh for the Applicants and Mr.Agrawal for the Respondent Nos. 1 to 6. Respondent Nos. 7 to 12 are served; but none appears for them. Office remark shows that the C.A. is abated as against Respondent No.11. 2 I have perused the original record. Respondent No.11 was original Defendant No.7. The suit had proceeded exparte against her. No decree was claimed against her nor was any decree passed. In view of this, the 23cas1526-08.sxw 2 presence of Respondent No.11 (original Defendant No.7) is not necessary and despite abatement of the Second Appeal against her, the S.A. can proceed against the remaining Respondents. 3 Prayer for condonation of the delay is vehemently opposed by relying on Affidavit -In-Reply filed by the Respondent No.1. The delay in filing the Appeal has been explained in paragraph 4 of the C.A.. Perusal of the Affidavit-In-Reply shows that paragraphs 1 to 16 therein deal with the merits of the controversy involved in the Appeal and the scope of powers of the High Court to hear and entertain the Second Appeal. While hearing the Application for condonation of delay, the aforesaid aspects are not required to be gone into since the question is as to whether the Applicant has explained the delay. Interestingly, in the entire Affidavit-In- Reply of the Respondent No.1, the averments in paragraph 4 of the Civil Application are not either traversed or disputed. The explanation offered by the Applicant is not disputed in the Affidavit -In-Reply though various other allegations are made against the Applicants that the Appeal has been filed with the malafide intention and that the Applicant is using dilatory tactics. The other explanation offered in paragraph 4 of the C.A. is not only plausible but there is no contest on the actual explanation given for 23cas1526-08.sxw 3 condonation for the delay. A case for condonation is made out. C.a. is allowed in terms of prayer clause (a) 4 List the S.A. for admission as per CMIS. [G. S. GODBOLE, J.]