1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.471 OF 2009. Hukumchand Taniram Jain, Age 58 years, Occ.Trader, R/o Lane No.3, Agra Road, Dhule. ... Appellant. Versus Manoj Lacjardas Tathed, Age major, Occ.Trader, R/o Lane No.2, Near Jain Sthanak, Dhule. ... Respondent. ... Mr.S.P.Shah, advocate for the appellant. Mr.P.S.Paranjape, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 27.09.2010. JUDGMENT 1. Heard. 2 2. Admit. 3. With the consent of the parties, this Second Appeal is taken up for final hearing forthwith. 4. The present appellant is the original plaintiff, had filed a suit for specific performance of contract against the present Respondent. The said suit came to be dismissed. The appellant preferred an appeal before the District Court, Dhule. There was a delay of 520 days in filing the said appeal. As such, the appellant moved an application U/s 5 of the Indian Limitation Act, for condonation of delay bearing Misc. Application No.73/2008, along with the appeal Memo. 5. The appellate Court held that the present appellant could not prove sufficient cause for not filing the appeal for a period June 2007 to October 2007 and from the date of receipt of certified copy till 26.3.2007. On that count had rejected the application for condonation of 3 delay. The appellant has assailed the said order in the present Second Appeal. In light of the above following substantial question of law arises : "Whether the grounds enumerated by the appellant in his application for condonation of delay would come within the ambit and meaning of sufficient cause as contemplated U/s 5 of the Limitation Act.?" 6. Heard Mr.S.P.Shah, learned counsel for the appellant and Mr.Paranjape, learned counsel for the Respondent. 7. Mr.Shah, learned counsel for the appellant submitted that the Courts below ought not have taken such a hyper-technical approach, more particularly, when the Court below was satisfied about the ailments suffered by the appellant and his wife. He submitted that after dismissal of the suit on 7.2.2007, immediately an application for certified copy was given on 4 17.2.2007 and the same was received on 22.3.2007 but before the certified copy could be received, the appellant himself suffered heart attack in second week of March 2007 and was hospitalised in Apollo Hospital. During the said period i.e. in March 2007, the wife of the appellant was diagnosed of breast cancer and she was also hospitalised from 27.3. to 29.3. and from 14.4. to 16.4.2007. The appellant was also hospitalised in the month of April and May at Banglore. Thereafter, again the wife of the appellant was hospitalised from 15.11.2007 to 24.11.2007 and from 13.12. to 25.12.2007 and again from 1.1.2008 to 2l.5.08, his wife was hospitalised. The appeal was filed on 18.8.2008. According to him, in May and June, the advocate of the appellant was not well. As such Mr.Shah, learned counsel contended that all along the appellant and his wife were undergoing medical treatment and were under medical attention. As such just because of some months in between the appellants were not hospitalised, the Court came to the conclusion that during interregnum, the appellant could have filed appeal. According to 5 him, such an approach is hyper technical. 8. Per contra, learned counsel for the Respondent resisted the arguments of the appellant's counsel and stated that even assuming the ailment suffered by the appellant and his wife, still, no explanation is forthcoming for not filing the appeal during interregnum of about seven months i.e. from June 2007 to October 2007 and from date of receipt of certified copy till 26.3.2007. According to learned counsel, the concept of sufficient cause can not be stretched to such an extent that it would cause injustice to the Respondent. According to him, no error has been committed by the Court below while passing the order impugned. There is no substantial question of law. 9. It is a trite law that when the technical considerations and cause for substantial justice are pitted against each other, the cause of substantial justice shall prevail. As has been observed by the Apex Court, judiciary is respected not because it can deny 6 justice on technical ground but it can sub-serve the cause of substantial justice. 10. The ailment suffered by the appellant and his wife are not discarded by the Court below. It is only for some intervening period, it was not shown that the appellant or his wife was hospitalised. Even assuming that for the intervening period, the appellant and his wife were not hospitalised, but the record shows that even after October 2007, the wife of the appellant was hospitalised. The ailment with which the appellant and his wife were suffering were not minor ailments but by a heart disease and cancer. In such circumstances, just because for some interregnum period, hospitalisation was not there, it can not be said that the appellant and his wife were not suffering from the said disease. It is shown on record that even after October 2007, the appellant's wife was hospitalised. In such circumstances, a liberal approach deserves to be taken. The appeal before the District Court is a first appeal and a last fact finding Court. The appeal is a statutory 7 right given to the appellant. 11. In light of the above, I feel it appropriate to condone the delay. However, because of the delay caused, the Respondent is put to hardship. As such I direct the appellant to pay costs of Rs.25,000/- (Rupees twenty five thousand) to the Respondent. 12. In the result, the Second Appeal is allowed. The delay caused in filing the appeal before the Court below is allowed. In effect the Misc.Civil Application No.73/2008 is allowed on condition that the appellant deposits costs of Rs.25,000/- (Rupees twenty five thousand) in the Court below on or before 18th October 2010. If the costs is paid then the appeal filed by the present appellant before the Court below be registered. The parties to appear before the Court below on 18.10.2010. If the cost is deposited and the appeal is registered then the lower appellate Court shall decide the appeal 8 within a period of six (6) months thereafter. (S.V.GANGAPURWALA,J.) asp/office/sa47109