sa522.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.522 OF 2011 ,With CA/12023/2011 Bhaskar s/o Jayram Alhat. ... APPELLANT. VERSUS TILAKNAGAR INDUSTRIES LTD. THR. MANAGER. ... RESPONDENT. ... Advocate for appellant : Mr.Pardeshi Rajesh M. Advocate for Respondents :Mr. Choudhary Nitin S. for R/sole. CORAM : S.S. SHINDE, J. Dated: December 19, 2011 PER COURT: 1. The learned Counsel for respondent tenders across the Bar, the affidavit-in-reply to civil application, filed on behalf of respondent, which is taken on record. 2. Heard learned Counsel for the appellant and the learned Counsel for respondent. The learned Counsel sa522.11 2 for the appellant invited my attention to the contents of the civil application for condonation of delay, which was filed before the lower appellate Court and submitted that sufficient cause was disclosed in the application for condonation of delay. The learned Counsel for the appellant submits that due to illness of the appellant and his wife, they are taking treatment from 2005 onwards as they are suffering from AIDS. For the reasons stated in the application and due to illness, there occurred delay of about 687 days in filing the first appeal, which ought to have been condoned. However, by taking hyper technical view, the lower appellate Court has rejected the application for condonation of delay. The learned Counsel for the appellant invited my attention to the substantial question of law / grounds taken in the memorandum of second appeal and submitted that the delay caused in filing first appeal should have been condoned, thereby allowing the appellant to prosecute the first appeal on merits. sa522.11 3 3. On the other hand, the learned Counsel for respondent, relying upon the affidavit-in-reply filed by the respondent, would submit that the delay was not properly explained, no medical certificate or medical evidence was produced on record by the appellant in respect of his and his wife's ailment. Therefore, in absence of sufficient cause disclosed in the application for condonation of delay, the view taken by the District Court is proper and therefore, this Court may not interfere with the impugned order in this second appeal. 4. Upon hearing the learned Counsel for the parties and going through the appeal memo, annexures thereto, reply filed by the respondent and other documents placed on record, the following substantial questions of law would arise for consideration in this appeal: i) Whether the lower appellate Court was justified in rejecting the application for condonation of delay caused in filing first appeal sa522.11 4 on the ground that no medical evidence was produced on record when the appellant stated in his application on oath that he himself and his wife are suffering from AIDS? ii) Whether the court below is justified in precluding the appellant from contesting the suit in relation to immovable properties, on the basis of technicalities? 5. In the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, the Apex Court observed: “3 The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in mattes instituted in this Court. But the message doe sot sa522.11 5 appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that cause would be decided on merits after hearing the parties. (3) “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay in fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to sa522.11 6 do so.” 6. It is an admitted position that no medical certificate or evidence was led by the appellants before the lower appellate Court. It is true that there is delay of 687 days. However, rejection of the application for condonation of delay, in substance, results in dismissal of the first appeal filed before the lower appellate Court. Therefore, the lower appellate Court ought to have given opportunity to the appellant, rather, should have directed the appellant to produce on record medical evidence. Therefore, in my considered opinion, the ends of justice would meet if the application is restored to its original file and the appellant is given opportunity to lead evidence and further to place on record relevant document about illness. 7. In the result, second appeal is allowed. The impugned judgment and order is quashed and set aside. The application filed by the appellant before sa522.11 7 the lower appellate Court is restored to its original file. The parties to appear before the lower Appellate Court on 11th January, 2012. The lower appellate Court to decide the application for condonation of delay within one month from the first date of hearing, after giving the appellant an opportunity to produce on record the medical evidence or the record available with him on or before 11th January, 2012. The appellant / applicant shall not seek unnecessary adjournment. Second appeal is allowed in above terms and disposed of. Civil Application also stands disposed of. [ S.S. SHINDE ] JUDGE. ... kadam/*