1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.67 OF 2010 Raosaheb Yada Borade, age: 74 years, Occ: Agri., R/o Bhatsangvi, Po: Kurla, Tq. & District Beed, through his G.P.A. Lata Gorakh Borwade, age: 27 years, Occ: Household, R/o Bhatsavangi, Dist.Beed. Appellant Versus 1 Ranu s/o Nama Borude, age: 63 years, Occ: Agri., R/o Bhatsangvi, Po: Kurla, Tq. & Dist.Beed. 2 Gina Mahadu Borade, age: 53 years, Occ: Agri., R/o Bhatsangvi, Po: Kurla, Tq. & Dist.Beed. Respondents Mrs.C.S.Deshmukh, advocate holding for Mr.S.P.Deshmukh, advocate for the appellant. Mr.A.A.More, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 08 th February, 2010. ORAL JUDGMENT: 1 Heard Mrs.C.S.Deshmukh, learned Counsel for the appellant and Shri A.A.More, learned Counsel for Respondent No.1. 2 The only substantial question of law arises for consideration in this appeal is, whether appellant – original defendant no.1 has made out a 2 case and put forth reasonable and sufficient cause for condoning delay, that has occurred in approaching the first appellate Court, by presenting an appeal? 3 Admit. Taken up for final hearing by consent of learned Counsel for contesting parties. 4 An application tendered by original defendant No.1 – appellant herein seeking condonation of delay of two years and five months occurred in presenting First Appeal before first appellate Court came to be rejected by IV Ad hoc Additional District Judge, Beed, on 13.04.2006 in Misc. Civil Application No.198/2005 below Exhibit-1, is subject matter of challenge in this Second Appeal. 5 Appellant is original defendant no.1 in the suit presented by original plaintiff – Respondent No.1 herein, being Regular Civil Suit No. 398/2000 claiming decree in respect of recovery of possession of land. It is the contention of plaintiff that defendants encroached upon an area to the extent of 32 ares belonging to him and as such, he is entitled to recover possession thereof. 6 According to defendant no.1, some mistake has occurred in recording area during consolidation proceedings and possession of parties is as per the old record. 7 The trial Court found favour with case put up by plaintiff and granted decree in his favour. 3 8 It is pointed out by learned Counsel for appellant that necessary corrections have been recorded in the scheme prepared by consolidation authorities and area possessed by plaintiff and defendants has been corrected. 9 It is to be noted that plaintiff and defendants are cousin brothers and property held by them is ancestral property. It is also to be noted that plaintiff has raised challenge to the order passed by consolidation authority directing correction in the scheme by presenting writ petition in this Court and it is stated that said writ petition has been admitted and pending for final disposal. It is also to be noted that according to defendants, decree passed by the trial Court has been executed and plaintiff has received possession of encroached area. In these circumstances, it cannot be said that defendant no.1 is benefitted because of occurrence of delay and as such delay is intentional. 10 In the application tendered by defendant no.1 – appellant herein, it is contended that he was suffering from ailment and as such, was required to take treatment from one Dr.Nitin Lodha. Necessary certificate has been placed on record. Said certificate has been discarded by the first appellate Court on the ground that hand writing in the certificate in respect of name and date does not appear to be in the hand writing of the person who has written contents of the certificate. 11 In the absence of there being any objection, it was not permissible for the Court below to discard medical certificate on the ground of alleged fabrication. It is to be noted that in the matter in respect of condonation of delay liberal approach is required to be taken and 4 endeavour has to be made to dispose of the matter on its own merits. While directing condonation of delay, one of the factor, that is required to be taken into account, is as to whether the party, who is responsible for causing delay, is being benefitted. In the instant matter, as I have observed earlier, according to defendant no.1 – appellant herein, decree has been already executed and in these circumstances, it cannot be inferred that he is benefitted because of occurrence of delay. Plaintiff can be compensated by awarding cost for the inconvenience, which is likely to be caused to him. In these circumstances, I am of the opinion that approach of the first appellate Court in rejecting application seeking condonation of delay appears to be hyper technical. 12 Appeal is, therefore, required to be allowed and same is accordingly allowed. Order passed by IV Ad hoc Additional District Judge, Beed on 13.04.2006 in Misc. Civil Application No.198/2005 below Exhibit-1 is quashed and set aside, subject, however, to payment of cost of Rs.5000/- (Rs.Five thousand) payable to original plaintiff – Respondent No.1 herein within a period of six weeks from today. In the event of failure to pay costs as stated above, order passed in this appeal, shall be deemed to have been revoked. (R.M.BORDE) JUDGE ******* adb/sa6710