kbp 1 5372-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5372 OF 2009 Manohar Ganpatrao Kshirsagar ..Petitioner Vs. Yashwant Ganpatrao Kshirsagar ..Respondent ......... Mr.P.R.Arjunwadkar, for petitioner. Mr.S.S.Patwardhan, for respondent no.2. ......... CORAM : A.S.OKA, J.. DATE : 15 th OCTOBER, 2009. P.C. : 1] I have heard submissions of the learned counsel for the parties. 2] On 21 st July, 2009 the notice for final disposal of this petition at the stage of admission was issued. As per the said order, a sum of Rs.7,500/­ has been deposited by the petitioner with this court. The challenge in this petition under Article 227 of the Constitution of India is to an order passed by the learned District Judge by which an application for condonation of delay made by the petitioner in a substantive appeal against a decree was rejected. 3] The petitioner in this petition is the second defendant in a suit filed by the second respondent plaintiff. The first and the third respondents are the original kbp 2 5372-09.sxw defendnts. The suit was decreed on 21 st March, 2004. The petitioner filed an appeal along with the application for condonation of delay on 31 st March, 2006. A prayer was made for condonation of delay of one year, six months and five days. The said application was contested by the second respondent original plaintiff by pointing out that the petitioner was negligent. He pointed out that even the written statement was not filed by the petitioner. It is contended that there was no sufficient cause. 4] In support of the petition, the learned counsel for the petitioner invited my attention to the averments made in the application for condonation of delay.. He pointed out that the suit was transferred to the court of the Civil Judge Junior Division, Gadhinglaj, District Kolhapur. After receiving the notice of transfer, the petitioner engaged an advocate. There was a communication gap between himself and his advocate, and therefore, the petitioner could not file the written statement. It is contended that during the relevant period the petitioner was suffering from illness and he was unaware of the decree passed in the suit. He submitted that a sufficient cause was made out. 5] The learned counsel for the second respondent submitted that the contentions raised in the application for condonation of delay were totally false. He pointed out that after the decree was passed, an application under Section 152 of the Code of Civil Procedure, 1908 was filed. In the said application, in February, 2005 the petitioner appeared through an advocate. On 23 rd January, kbp 3 5372-09.sxw 2006, the said application was granted, and thereafter, an application was made for by the petitioner for obtaining a certified copy of the decree of the trial court. He, therefore, submitted that there is complete negligence on the part of the petitioner. He submitted that the petitioner has no defence in the suit, and therefore, no interference is called for. 6] I have given careful consideration to the submissions. The decree was passed on 31 st August, 2004. Even, going by the contentions raised by the learned counsel for the second respondent it appears that in January, 2005, an application for correcting the decree was made. The said application was allowed on 23rd January, 2006. On 14 th February, 2006, the petitioner applied for certified copies of the judgment and decree. The copies were delivered to the petitioner on 16 th February, 2006, and on 31 st March, 2006 an appeal along with delay condonation application was filed. One of the grounds pleaded by the second respondent is that even during the pendency of the suit, the petitioner was negligent. However, this aspect need not be considered while considering the delay caused in preferring an appeal against the decree. The case made out in the application is that the petitioner could not attend the suit due to his illness, and therefore, the decree came to be passed as the written statement could not be filed. It must be noted that the petitioner has stated that he did not attend the suit due to his illness and he was not aware about the dates fixed in the suit. 7] While deciding an application for condonation of delay, a liberal and kbp 4 5372-09.sxw justice oriented approach is contemplated. The petitioner examined himself on oath and also examined a medical practitioner to prove that he was ill. In the present case, considering the averments made in the application, the appellate court ought to have condoned the delay by imposing some costs. The petitioner has already deposited a sum of Rs.7,500/­ in this court towards costs payable to the second respondent, 8] Hence, I pass the following order:­ (a) The impugned judgment and order dated 29 th April, 2009 is quashed and set aside and Misc. Civil Application No.11 of 2006 is allowed. (b) The second respondent is permitted to withdraw the sum of Rs. 7,500/­ deposited in this court. (c) Hearing of the appeal is expedited. (d) Petition is allowed in the above terms. ( A.S.OKA, J. )