jpc 1 wp5103-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 5103 OF 2011 Ayub Abbas Jamadar and others ... Petitioners Versus Ramjan Abbas Jamadar and others ... Respondents Mr. Vaibhav A.Sugdare for the petitioners Mr. Anilkumar Patil for respondent Nos. 1 and 2 Mr. Shrikant D. Patil i/by Mr. Kuldeep S. Patil for Respondnt No.9 CORAM: R. M. SAVANT, J. DATED : 20th December, 2011 P.C. : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition takes e exception to the order dated 11th January, 2011 passed by the learned District Judge-1 Sangli by which order, the application for condonation of delay of 460 days in filing the First Appeal in the District Court came to be rejected. 3. It is not necessary to burden this order with unnecessary facts. Suffice it to say that the condonation of delay was sought on the ground that petitioner no.1 who was handling the suit in question had fallen ill and also that there was communication gap between the jpc 2 wp5103-11.sxw petitioner no.1 and advocate engaged by the petitioners. The said grounds were not found acceptable by the learned trial Court and the trial Court, relying upon the judgments which have been mentioned in the impugned order, recorded a finding that petitioners have not made out sufficient cause for condonation of delay. 4. It is required to be noted that certified copies were obtained by the petitioners on 24th July, 2006 and the Misc. Appeal No. 21 of 2006 along with application for condonation of delay was filed on 7th December, 2006. There is no explanation given for the said period. 5. Having heard the learned counsel for the parties and having perused the impugned order, in my view as and by way of final indulgence, an opportunity is required to be given to the petitioners as they are faced with the decree passed against them in the suit. No doubt there is delay of 460 days in filing the first appeal. However, the fact that the petitioner No.1 was not well and in support of which evidence was led before the trial Court though disbelieved by the trial Court, cannot be lost sight of. 6. Applying the well settled principle that a party should be given an opportunity to prosecute its remedy on merits rather than being thrown out on technicalities, in my view the application in question is required to be allowed. Resultantly, impugned order is quashed and set aside and the application is allowed and the delay of 460 days is jpc 3 wp5103-11.sxw resultantly condoned. 7. In the facts and circumstances of the present case, the interest of justice requires that the petitioner to pay costs to the respondents herein. The petitioner therefore to deposit cost of Rs.5000/- within a period of four weeks from date in the the First Appellate Court. The respondents would be entitled to withdraw the said costs on the same being deposited. The deposit of the said costs is a condition precedent and if the costs are not deposited as directed in this order, the benefit of this order would not ennure to the petitioners and resultantly the petition would be deemed to have been dismissed. 8. The decree is of the year 2005 and the appeal has been filed in 2006. It would, therefore, be appropriate to direct the First Appellate Court to dispose of the appeal within a particular time frame. The first Appellate Court is therefore to hear and decide the said Appeal by 31st May, 2012, without granting unnecessary adjournments. 9. Rule is accordingly made absolute in the aforesaid terms. (R. M. SAVANT, J.)