SRJ 1 wp-4019-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4019 OF 2009 Smt. Housa Vitthal Budhawale .. Petitioner. V/s. Shri Sunil Banshiram Bhosale & Others .. Respondents. Mr. Milind Deshmukh, for Petitioner. Mr. R.V.Bansode, for Respondent No.1. CORAM :A.S.OKA,J. DATE :12th APRIL,2010 P.C.:- 1] Heard learned Counsel appearing for the Petitioner and learned Counsel appearing for the 1 st Respondent. On 27 th August, 2009 notice for final disposal was issued to the 1 st Respondent who is the only contesting party as being the original Plaintiff. The Petitioner is the 4 th Defendant in the suit filed by the 1 st Respondent. On 18 th April, 2008 the suit was decreed. On 11 th November, 2008 an application for condonation of delay alongwith an appeal was preferred by the Petitioner. By the impugned order dated 23 rd February, 2009, learned District Judge has rejected the application. SRJ 2 wp-4019-09.sxw 2] The learned Counsel appearing for the Petitioner submitted that delay was only of two months and the specific case of the Petitioner was that she was not aware of the decree dated 18 th February, 2008. He stated that after the Petitioner became aware of the decree passed on 18 th February, 2008,an application for obtaining certified copies of the Judgment and decree was made and after receiving copies on 7 th November, 2008, on 11 th November, 2008 an appeal was preferred. 3] The learned Counsel appearing for the 1 st Respondent invited my attention to the affidavit in reply. He submitted that the averments made in the reply and in particular in sub-para 8 clearly show that all alongwith the Petitioner was aware of the pendency of the suit and in fact, the Petitioner was represented by the same Advocate who was representing 2 nd to 4 th Respondents who were the other defendants in the suit. The learned Counsel invited my attention to the xerox copy of the Vakalatnama annexed to the reply. He, therefore, submitted that as the Petitioner was fully aware of the pendency of the suit, the Appellate Court was justified in rejecting the application for condonation of delay. SRJ 3 wp-4019-09.sxw 4] I have given careful consideration to the submissions. Perusal of the averments made in the application for condonation of delay show that the specific case of the Petitioner is that the Petitioner was not aware of the decree passed on 18 th February, 2008. In the said application, the Petitioner has not pleaded ignorance about the knowledge of the pendency of the suit. It is contended in the application that her thumb impression on Vakalatnama of an Advocate was obtained at her residence. While preferring an appeal against decree, the Petitioner was called upon to explain the delay from the date of the decree. The said delay was explained by stating that till 4 th November, 2008, the Petitioner was not aware of the decree dated 18 th February, 2008. On 4 th November, 2009, after she became aware of the decree, the Petitioner applied for certified copy thereof which was received on 7 th November, 2008. An application for condonation of delay was filed on 11 th November, 2008. There is nothing on record to show that after 18 th February, 2008, the Petitioner was aware of the decree at any date prior to 4 th November, 2008. 5] In the circumstances, the entire approach of the Appellate Court was erroneous. The delay ought to have been condoned subject to Petitioner paying costs. SRJ 4 wp-4019-09.sxw The amount of costs is quantified at Rs.5,000/-. Hence, I pass following order:- (i) The impugned judgment and order dated 23 rd February, 2009 is quashed and set aside. (ii) Civil Misc. Application No.41 of 2008 is hereby allowed. (iii) The Petitioner shall pay costs of Rs.5,000/- to the 1 st Respondent within a period of ten weeks from today. The deposit of the amount of costs with the Appellate Court within the stipulated period will be treated as a sufficient compliance. If compliance is not made within the stipulated period, the impugned order will stands. (iv) Writ Petition is allowed in the above terms. (A.S.OKA,J.)