jpc 1 wp6680-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6680 OF 2011 Yusuf Ali Irani alias Faruq Unus Alikhan Irani .. Petitioner Versus Smt. Laxmibai Ramchandra Shinde .. Respondent Mr. S. V. Sadvarte for the petitioner Mr. Rahul P. Walvekar for the respondent CORAM: R. M. SAVANT, J. DATED : 21st November, 2011 P.C. : 1. Rule, made returnable forthwith. By consent, the petition is taken up for hearing. 2. The above petition takes exception to the order dated 19th July, 2011 passed by the learned District Judge-3, Kolhapur by which order the application for condonation of delay of about 9 months and 17 days came to be rejected. 3. Shorn of unnecessary details a few facts can be stated thus: The petitioner is the defendant in Regular Civil Suit No. 1226 of 2001, filed by Respondent no.1 herein for recovery of possession and jpc 2 wp6680-11.sxw arrears of rent. The said suit came to be decreed on 15th of February, 2006. The petitioner has not participated in the said suit, therefore, the said decree was passed ex-parte. The petitioner filed an appeal against the said decree on 7th of April, 2006. It appears that the in the said appeal also the petitioner did not appear and hence the appeal came to be disposed of by an ex-parte order dated 20th of November, 2009. The petitioner, thereafter, filed the instant application being Misc. Civil Application No. 282 of 2010 purportedly under Order 9 Rule 13 of the Code of Civil procedure for setting aside the said decree and since it was belated by 9 months and 17 days, the petitioner filed the application for condonation of delay. The principle ground on which the delay was sought to be condoned was that since the parties were negotiating a settlement and since it was represented to the petitioner that he may not appear in the proceeding, the petitioner had not appeared at the time when the appeal came up for hearing. The said reasons were not found to be acceptable by the First Appellate Court for setting aside the order dated 20th of November, 2009 and by the impugned order dated 19th July, 2011, the said application for condonation of delay in filing the restoration came to be rejected. 4. Heard the learned counsel for the parties. jpc 3 wp6680-11.sxw 5. Learned counsel for the petitioner seeks condonation of delay on the grounds mentioned in the said application and submits that if the delay is not condoned, prejudice would be caused to the petitioner, Inasmuch as the decree in question would then be executed against him. It is the contention of the learned counsel that sufficient cause has been shown by the petitioner. Per contra, the learned counsel appearing for the respondent- decree holder submits that no case for condonation of delay has been made as, sufficient cause has not been shown by the petitioner to the satisfaction the of the First Appellate Court. 6. Though the trial Court has found the reasons mentioned by the petitioner in the said application as not acceptable on the ground that they do not constitute sufficient cause, in my view, some credence would have to be given to the petitioner, that since the parties were negotiating a settlement, he did not participate in the said proceedings. It is trite that a party should be given an opportunity to prosecute the proceedings on merits rather than being thrown out on technicalities. No doubt there is delay of about 10 months in filing the said application. However, for the said delay, the respondents herein can be adequately compensated. In that view of the matter, the impugned order dated 19th July, 2011 is required to be quashed and set aside and jpc 4 wp6680-11.sxw accordingly quashed and set aside. Resultantly, the delay of about 9 months and 17 days in filing the application for restoration is allowed. The appeal is accordingly restored to file. On such restoration, the First Appellate Court to decide the appeal within a period of three months from date. The parties to appear before the First Appellate Court on 12th December, 2011. The First Appellate Court, thereafter, to fix the schedule as per its convenience. 7. In my view, the interest of justice would also be served, if the petitioner is directed to pay costs of Rs.3000/- to the respondents within a period of two weeks from date. In the event the costs are not paid, the benefit of this order would not ennure to the petitioner and resultantly, the above petition would be deemed to have been dismissed. Rule is accordingly made absolute in the aforesaid terms, with parties to bear their own costs. (R. M. SAVANT, J.)