1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICLATION NO.44 OF 2006 with CIVIL APPLICATION NO.1810 OF 2010. Sundrabai w/o Kisan Mali & Ors. - PETITIONERS VERSUS Babu s/o Karbhari Surase & Ors. - RESPONDENTS ***** Mr.SP Brahme,Advocate for Petitioners; Mr.Mr.Magre, Adv.h/for Mr. BN Patil for Respondent Nos. 6-A, 7 to 10. ----- CORAM : K.U.CHANDIWAL, J. DATE : 26th February, 2010. PER COURT : 1) Heard Mr.Brahme for the petitioners and Mr.Patil for Respondents. 2) The petitioners herein are aggrieved by the order of learned Additional District Judge, 2 Aurangabad dated 29.4.2006, condoning the delay in preferring the appeal, seeking to challenge the order of learned Joint Civil Judge, Junior Division, Vaijapur in RCS No.157/1990. It was a decree ex parte against the defendants, the appellants before the learned Additional District Judge in MARJI No.18/1997. 3) Mr.Brahme submits, the grounds, in which the learned Appellate court sought to condone the delay, are illusory in their nature and do not display principles requiring such interference. I have gone through the order of learned Additional District Judge, before whom there was evidence of Petitioner/applicant no.3 – Bhausaheb, who has indicated that Advocate Shri Jagtap was engaged by the applicants/petitioners to defend themselves, however, said Advocate did not inform about the decision of the suit. It was ultimately when they went at Vaijapur in the month of December 1996, to enquire about the suit, at that time, the defendants learnt that 3 the decision has gone against them. The applicant/petitioner – Bhausaheb informed the learned Additional District Judge that he is an illiterate person, the delay in filing the appeal has caused as the Advocate did not inform them about the decision of the suit. 4) This was indeed tried to be refuted by the plaintiff by evidence of Respondent No.7 in the said MARJI NO.18/1997 about knowledge to the petitioners in MARJI NO.18/1997 since there was a copy application, seeking a copy of judgment and decree dated 29.11.1994. 5) The learned Additional District Judge considered that Regular Civil Suit No.157/1990 was decreed and he felt it was expected of the respondents in MARJI NO.18/1997 not to have opposed the claim of the petitioners for condonation of delay. Before the learned Judge, neither the Respondent nos.1 to 5, nor the learned Counsel participated in the hearing of 4 the MARJI NO.18/1997. Though the learned Judge found that copy application was moved by one of the defendants (petitioner in MARJI NO.18/1997) which was at Exhibit-79, however, according to learned Additional District Judge, it was not sufficient to discard the case of those petitioners. The delay, indicated in MARJI NO. 18/1997 before the learned Additional District Judge displayed sufficient grounds, could not be said to be illusory in its nature. The learned Judge found that the non-attendance of the defendants in the original proceedings will have its imperative adverse impact on their legitimate rights, which needs to be decided on merits. The observation of the learned Additional District Judge in condonation of delay and entertaining the appeal, cannot be said to be erroneous or divorced from the facts and record. Consequently, the impugned order does not require any interference. CRA lacks merits, it is dismissed. 5 6) The parties shall appear before the learned Additional District Judge, Aurangabad on 26th March, 2010. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/cra44.06