1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CIVIL APPLICATION NO.186 OF 2010 IN SECOND APPEAL STAMP NO.3770/2210 Arvind Haribhau Gokhale ..vs.. Shirish HaribhauGokhale =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri S.R.Deshpande, advocate for applicant Shri Nilawar, advocate for R-1 Smt. N.S. Jog, advocate for R-2 to6 C ORAM : SMT. VASANTI A NAIK,J. DATED : 19th MARCH, 2010. Heard Shri S.R.Deshpande, advocate for the appellant, Shri V.Y. Nilawar, advocate for respondent no.1 and Smt. Nita Jog, advocate for the respondent no.2 to 6. By this civil application, the applicant seeks condonation of delay of 85 days in filing the first appeal. According to the appellant the first appeal was decided on 17.8.2009. But since the appellant is an old aged person and under treatment for dementia - disorder of aging brain, he was required to file the review application before the first appellate court for reviewing the judgment dated 17.8.2009 because he was asked to argue the matter in person. It is the case of the applicant that because of this 2 disorder and because of the pendency of the review application, which was filed before the first appellate court, there is some delay in filing the second appeal. It is submitted on behalf of the applicant that the review application was filed before the first appellate court on 6.1.2009 and the same was decided by the court on 21.1.2010. Thereafter, according to the applicant he applied for certified copy of the judgment passed by the first appellate court and on receiving the same after engaging the counsel, the present application was filed before this court on 22.2.2010 along with the second appeal. It is the case of the applicant that in the facts and circumstances of the case, this court should take a liberal approach in the case and condone the delay of 85 days in filing this second appeal. It is canvassed on behalf of appellant by the learned counsel that the delay caused in filing the second appeal is not due to negligence on the part of the applicant, but is bonafide and therefore, it is necessary for this court to adopt a liberal and pragmatic approach in the instant case. The learned counsel for the applicant relied on the decisions reported in (1999) (2) Mh.L.J.Page 272, (2005) 3 Mh.L.J. Page 681 and (2005) 4 Mh.L.J. Page 381 to substantiate his submission. Shri V.Y. Nilawar, learned counsel for the respondent no.1 strongly opposed the prayer made in this civil 3 application and submitted that since the inception of the litigation the applicant has been delaying the matter mischievously. Learned counsel for the respondent no.1 submitted that the application is mainly filed under section 14 of the Limitation Act and it is necessary for the applicant to prove that he was bonafide litigating the matter before another forum as a result of which the delay was caused. Learned counsel for the respondent no.1 submitted that the first appellate court has observed in the order deciding the review application on 21.1.2010 that the filing of the review application was not in good faith and has also imposed costs of Rs.16000/- on the applicant. According to the learned counsel for respondent no.1 the applicant should not have filed a writ petition against the order passed by the first appellate court on 21.1.2010. The conduct of the applicant, according to the respondent no.1 dis-entitles him from seeking relief of condonation of delay in this case. Mrs. Nita Jog, learned counsel for the respondent no.2 to 6 made the submissions on the similar lines. The learned counsel took this court through the application filed by the applicant for condonation of delay and submitted that the statement of fact made in the application that the applicant was bonafide prosecuting the review application is false, as the reviewing court has in the order dated 6.10.2009 categorically observed that a 4 false plea is taken by the applicant while filing the review application and exemplary costs of Rs.16000/- were imposed on the applicant. The learned counsel for the respondent no.2 to 6 submitted that the order passed by reviewing court on 21.1.2010 is neither set aside by this court, nor has it been stayed till this date and therefore, it cannot be said that the applicant was bonafide litigating the matter before the first appellate court by filing the review application. Learned counsel for respondent no.2 to 6 also sought for the dismissal of the application. I have considered the submissions made on behalf of the parties, perused the application, replies filed by the respondents thereto, as also the decisions of this court reported in (1999) (2) Mh.L.J.Page 272, (2005) 3 Mh.L.J. Page 681 and (2005) 4 Mh.L.J. Page 381. On perusal of the same, it appears that in the interest of justice this civil application for condonation of delay of 85 days in filing the second appeal needs to be allowed. It is not disputed that the applicant had argued the first appeal before the first appellate court in person. It is further not in dispute that the applicant had filed review application on 6.11.2009 before the first appellate court though it is the case of the non applicants that the same was mischievously filed to delay the execution of the decree. Review application was decided by the first appellate court on 21.1.2010. Though it is observed by the first appellate 5 court that the applicant had loss of mind or dementia, it seems that plea of said disease was selectively put forth by the applicant for his own benefit. It is necessary to note that though the first appellate court thought that the applicant had taken a false plea of dementia and had filed a frivolous application for review and had imposed costs on the applicant, said order dated 21.1.2010 is challenged before this Court and has not attained finality. Though the order dated 21.1.2010 is not stayed by this court in the writ petition filed by the applicant, the writ petition is still pending admission and it is clear that the order dated 21.1.2010 is subject to challenge and has not attained finality. In such circumstances on consideration of the certificate issued by the Medical Practitioner from the Central Institute of Behavioral Sciences showing that the applicant was under treatment of the medical practitioner from 5.10.2009, for dementia - disorder of aging brain relating to behavioral changes and memory loss it can not be said that the delay caused in filing the civil application in the aforesaid facts and circumstances is not bonafide. Moreover, time and again the Supreme Court as well as this court has laid down that this court must adopt a liberal approach while considering the application for condonation of delay and should grant the prayer in case it is found that the applicant is not negligent and the delay caused in filing the application is bonafide. In my view in 6 the facts and circumstances of the case, it cannot be said that the delay caused in filing the second appeal is not bonafide and hence it is necessary allow the application for condonation of delay in filing the second appeal by taking a pragmatic approach in the matter. Hence in the facts and circumstances of the case, the prayer made in the civil application is granted. The delay caused in filing the second appeal is condoned. The civil application is allowed and disposed of. Matter may be listed for admission on 23.3.2010. JUDGE SMP