1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 69 OF 2010 1. Balkishan Birdichand Mundada, (Since deceased, through legal heirs) 1-A. Kamlabai Balkishan Mundada, Age 76 yrs., Occu. Household Work, R/o. House No. 1606/B, Lane No. 6, Dhule, Tq. & Dist. Dhule. 2-B. Ashalata Shrinivas Bhangdiya, Age 56 yrs., Occu. Household Work, R/o. Plot No. 21-A, Phule Colony, Dhule, Tq. & Dist. Dhule. 1-C. Surekha Suresh Mantri, Age 52 yrs., Occu. Household Work, R/o. Gangopi Apartment, Khajamiya, Ring Road, Jalgaon, Tq. & Dist. Jalgaon. 1-D. Sanjay Balkishan Mundada, Age 48 yrs., Occu. Business, R/o. CTS No. 4498/1, Above Bank of Maharashtra, Agra Road, Deopur, Dhule, Tq. & Dist. Dhule. 1-E. Ajay Balkishan Mundada, Age 46 yrs., Ocu. Business, R/o. House No. 1606/B, Lane No. 6, Dhule, Tq. & Dist. Dhule. 1-F. Sunil Balkishan Mundada, Age 44 yrs., Occu. Service, R/o. House No. 1606/B, Lane No. 6, Dhule, Tq. & Dist. Dhule. ....Appellants. Versus 1. Sushilabai Bansilal Mundada, Age 61 yrs., Occu. LIC Agent, 2. Vijay Bansilal Mundada, Age 45 yrs., Occu. Business, 2 3. Anil Bansilal Mundada, Age 36 yrs., Occu. Business, 4. Manoj Bansilal Mundada, Age 36 yrs., Occu. Business, All R/o. House No. 1606/B, Lane No. 6, Dhule, Tq. & Dist. Dhule. ....Respondents. Shri. Deelip Patil-Bankar h/f. Shri. P. B. Salunke, Advocate for the appellants. Shri. S.P. Shah, Advocate for the respondent Nos. 1 to 4. CORAM : R.M. BORDE, J. DATE : 11th March, 2010 ORAL JUDGMEN : 1. Heard respective counsel appearing for the parties. 2. The only substantial question of law that arises for consideration in the appeal is, whether the appellants/original defendants have exhibited sufficient cause for condoning the delay in presenting the appeal before the first appellate Court and whether the order passed by the first appellate Court, rejecting the application, seeking condonation of delay presented by the appellants/original defendants, is legal and proper ? Admit. With the consent of learned counsel for contesting parties the matter is taken up for final disposal forthwith. 3 3. The appellants are original defendants in a suit presented by the respondents/original plaintiffs, claiming a decree of perpetual injunction, restraining the defendants from raising construction over the disputed property. It is needless to go into the controversy involved in the matter, suffice it to mention that after proper contest between the appellants/original defendants and respondents/original plaintiffs, the suit was decreed by the trial Court in view of the judgment and decree dated 25.2.2008 in Regular Civil Suit No. 179/2002. The appellants/original defendants preferred an appeal raising exception to the said judgment and decree. However, the appeal was presented late. As such, the defendants were required to present a separate application seeking condonation of delay before the first appellate Court which was registered as Misc. Civil Application No. 105/2008. There is delay of 219 days occurred in approaching the first appellate Court. It is stated in the application that appellant No. 5/original defendant No. 4 was looking after the progress of the litigation on behalf of other defendants. Original defendant No. 1 is the mother, who is 75 years of age and who was suffering from ailments. She was required to be admitted in the hospital for securing proper treatment and it is stated that defendant No. 4 was busy in looking after the health of his mother. The copies of the medical certificate as well as other documents, demonstrating the admission of defendant No. 1 in hospital, are placed on record. It is contended by the appellants/original defendants that delay in presenting the appeal before the first appellate Court is not intentional and they are not getting 4 any benefit by approaching the Court late. It was requested to condone the delay and decide the appeal on its own merits. 4. The application was opposed by the respondents/original plaintiffs, contending that there are other appellants, who are equally capable of looking after the matter. The reasons demonstrated by the defendants are not sufficient to show any indulgence. The first appellate Court after considering the rival contention was pleased to reject the application. As such the appellants/original defendants are before this Court. 5. I have perused the application as well as the order passed by the first appellate Court. It is to be noted that this Court as a matter of course takes liberal view in the matters relating to condonation of delay. It is always desirable that an endeavour shall be made as far as possible to decide the controversy in the matter after hearing the parties on merit. One has also look into the aspect whether the party who is responsible for causing delay, is being benefited. In the instant case, looking to the close relationship between the parties and considering the nature of litigation, it cannot be said that the defendants are benefited because of their laxity in approaching the first appellate Court late. Apart from this, the reasons demonstrated by the defendants also appear to be genuine. There is sufficient evidence placed on record to show that one of the defendants was hospitalized and being the members of the family, 5 other defendants were supposed to look after her health. The first appellate Court ought to have considered the matter in its proper perspective and ought to have allowed the application. Considering the reasons recorded above, I am of the opinion that appeal deserves to be allowed and defendants need to be given an opportunity to place their contentions before the first appellate Court. 6. In this view of the matter, the order passed by the District Judge - 1, Dhule dated 12.10.2009 in Misc. Civil Application No. 105/2008 is quashed and set aside. The application presented by the defendants/appellants herein shall be deemed to have been allowed. The first appellate Court shall proceed with the matter and decide it on its own merits and in accordance with the provisions of law. In the facts and circumstances of the case, there shall be no order as to costs. 7. In view of disposal of appeal, pending civil application, if any, do not survive and stands disposed of accordingly. [ R.M. BORDE, J. ] ssc/sa69.10