1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1004 of 2008 Shri Narahari @ Narendra Ganpat Jadhav Petitioner Vs. Shri Bharat Chandrakant Jadhav Respondent Mr.Ramesh Bhalerao for petitioner. Mr.Mandar LImaye for respondent. CORAM: B.H.MARLAPALLE, J. April 3, 2008 P.C. . Heard Mr.Bhalerao, the learned counsel for the petitioner. . Rule. . Mr.Mandar Limaye waives service for the respondent-plaintiff. . By the impugned order dated 31/1/2008 the lower Appellate Court has rejected the application filed to condone the delay of three days caused in filing the Appeal and, therefore, the petition is taken up for final hearing forthwith. . Special Civil Suit No.698 of 2006 came to be 2 filed by the present respondent and it was decided on 2/11/2007. The said decree was sought to be challenged by filing an appeal before the District Court and as the appeal was filed belatedly, Civil Misc. Application No.1127 of 2007 was filed praying for condonation of three days’ delay. The said application was opposed by the plaintiff by filing say at Exhibit 11. The learned Judge of the lower Appellate Court in the impugned order held that the petitioners failed to show that there were good and sufficient reasons in not preferring the appeal within time. The following observations made by the learned Judge in para 17 need to be reproduced: ""It is settled position that the provisions of Section 5 of the Limitation Act must be liberally construed and has to be applied to advance substantial justice. In our case, no doubt, the delay is of only three days. However, the causes put forth by the applicants for not preferring the appeal within time appear to be most unreasonable and unreliable in inspiring any confidence. Therefore, if the applications is allowed then certainly, injustice would be caused to the 3 other side." . To say the least, the reasoning adopted by the Court below is hypertechnical and contrary to the well established position in law. We may usefully refer to the judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji & ors. [AIR 1987 SC 1353] [AIR 1987 SC 1353] [AIR 1987 SC 1353] in this regard. The delay of three days could have been condoned for asking and without giving any explanation. The learned counsel for the plaintiff submitted that the delay was more than one month. Even then, it would not be a case to refuse to condone the delay only because the defendants were at the same time prosecuting criminal cases filed against the plaintiff and they were appearing on day to day basis in the said cases. By the impugned order the statutory remedy of appeal has been defeated and it has resulted in miscarriage of justice. . Hence this petition succeeds and the same is hereby allowed. The impugned order is quashed and set aside and Civil Misc. Application No.1127 of 2007 stands allowed and the appeal be registered. Trial of the appeal is hereby expedited. The 4 petitioners are allowed to withdrawn the deposited amount of Rs.2000/- (B.H.MARL