IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION NO. 4749/2008 (Jagdish Govindbhai Pitrode and ors vs. Smt. Sumanbai Vishwamanth Buradkar and ors.) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : S.R.DONGAONKAR, J DATED : 20 th AUGUST, 2008. Heard Shri S.V.Purohit, Advocate, for the applicant, Shri R.M.Ahirrao, Advocate, for Respondent Nos. 1 to 4 and Shri S.N. Dandekar, Advocate, for Respondent no.5. 2. This is an application for condonation of delay in preferring an appeal against the judgment and order passed by Workmen Compensation Commissioner in W.C.A. No. 44/1999. 3. The applicants contend that the judgment against which the present appeal is sought to be filed was passed on 25.4.2007. This application along with the proposed appeal has been filed on 16.6.2008. The other dates which are relevant, are, the date of application for certified copy i.e. 13.4.2007 and 27.4.2007 when the certified copy was received. The appeal was to be filed within 60 days. 4. The appellants/applicants have given the reasons for the delay in the application. 5. Learned counsel for the respondents have opposed the application contending that the delay is not satisfactorily explained. The reason for opposition includes one that the appellant/applicant were knowing that the appeal could be preferred against the impugned order under Section 30 of the Workmen Compensation Act, still they had preferred the Writ Petition bearing WP No. 635/2007, to challenge that judgment; which was allowed to be withdrawn on 26.3.2008, as the remedy of appeal was available with a liberty to file the appeal. 6. It is contended by the learned counsel for the respondents that the illness of applicant no.1, so also of applicant no.2 cannot be said to be material and moreover delay consequent to those illness is not substantiated by the documentary evidence on record. It is also contended that taking remedy of writ petition was one of the ways resorted by appellants to delay the payment of compensation to the respondents, as the applicant/appellants themselves have mentioned in the writ petition that they could not file the appeal because of impossibility to arrange for large deposit they were required to make before preferring an appeal under Section 30 of the Workmen Compensation Act. Therefore, according to him, as the provision of remedy of appeal was in the knowledge of the applicants/appellants, the period spent in conduct of the writ petition by the applicants/appellants cannot be excluded. It is his further contention that even after withdrawal of the writ petition on 26.3.2008, this application was not filed immediately thereafter as this application is filed on 16.6.2008. Therefore, according to him, the delay as required under Section 5 of the Limitation Act is not at all explained and therefore, this application should not be entertained. 7. I have given anxious consideration to the contentions raised by the parties including one that even now the appeal preferred by applicant/appellants is lack of certificate of the Commissioner as required under the proviso of Section 30 of the Workmen's Compensation Act. 8. As regards compliance of proviso of Section 30 of the Workmen Compensation Act, suffice it to say that in view of the judgment report in III L.L.J.(Supp.) 1996 (High Court Orissa); Oriental Insurance Co. Ltd. vs. Gajendra Prusty & Anr, this compliance can be done when the appeal presented by the applicants would be considered for admission. In the present case, merely because the appeal is not filed along with the relevant certificate of the Workmen's Compensation Commissioner, this application cannot be rejected. 9. As already stated above, day to day delay is not satisfactorily explained, but it does appear that this Court while allowing the applicants to withdraw the writ petition has granted liberty to the applicants to file the appeal. No doubt, this application is filed quite late even after withdrawal of writ petition, but fact remains that there is a statement on affidavit that the applicant could not arrange for money for depositing the same with the Commissioner which was a condition precedent for filing the appeal. It does appear that unless the arrangement of money for being deposited before the Commissioner is made, appeal cannot be filed nor entertained. When the amount to be deposited is quite large and the applicants are poor, that condition would certainly work out to be onerous to the concerned party because no appeal can be filed without deposit of the award amount. Such financial constraint in my opinion can be a sufficient cause for condoning delay, if the circumstances of the case so warrant. 10. When such pre condition for preferring an appeal appears to be onerous and the delay does not seem to be unreasonable, it would be in the interest of justice to condone such delay, as in this case. However, in the present case, it would be subject to some costs as the application is opposed. 11. One another aspect which can not be overlooked is the fact that by allowing this application, the payment of compensation to the respondents would in a way be secured, ofcourse, subject to orders in the appeal of the appellant. 12. In this view of the matter, I am inclined to allow this application, however, subject to costs of Rs. 1000/-, to be paid within a period of four weeks to Respondent Nos. 1 to 4. No costs shall be payable to Respondent NO. 5 considering the circumstances of the case. 13. On compliance of this condition in the stipulated time, the appeal preferred by the applicants may be listed for admission. Ordered accordingly. JUDGE Rvjalit