1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.465/2009 Sadulla s/o Sultan Shete through L.Rs. ..vs..Vithal Bhagwan Gotmare =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri Aniruddha Choube, advocate for the appellant Shri V.S. Kukdey, advocate for respondent C ORAM : SMT. VASANTI A NAIK,J. DATED : 29th MARCH, 2010. Heard learned counsel for the parties. The appellants are the original defendant. A suit was filed by the respondent against the appellants for specific performance of contract. The suit was decreed on 30.9.1994. The appellants did not prefer any appeal against the judgment and decree dated 30.9.2009 till 12.6.2008. On 12.6.2008, the appellants filed a first appeal along with an application for condonation of delay in filing the first appeal. It was the case of the appellants in the application for condonation of delay that, since the first week of September 1994 Mr. Siraj – the appellant no.3, who used to look after the matter suffered from diabetes and high blood pressure. It is stated in the application that Mr. Siraj 2 had literally lost his control over his memory and therefore, was not recollecting the fact about the passing of the decree, the name of the court as also the name of the advocate who was engaged in the matter. In such circumstances, according to the appellants Mr. Siraj was not able to contract the counsel and instruct the counsel to prefer the appeal. It is then stated in the application that all of a sudden in the year 1999, the appellants received the summons from the Executing Court and after hectic efforts, he could find out the earlier counsel and instruct him to file the appeal, after arranging for the court fee stamps. It is further stated that Mr. Siraj suffered a heart attack and could not file the matter promptly. It is stated that the appellants immediately applied for grant of certified copy and after receiving the same on 30.5.2008, the appeal was filed. The respondent vehementally opposed the prayer made by the appellants in the application for condonation of delay. The appellants then filed an application for permission to lead evidence on the application for condonation of delay. That application was also rejected by the first appellate court on the ground that the respondent had admitted the documentary evidence in the form of certificates which were issued by the doctors and in such circumstances, there was no occasion for permitting the appellants to lead oral evidence in the case. 3 Ultimately, by the order dated 29.11.2008, the first appellate court dismissed the application for condonation of delay in filing the first appeal. The appellants have challenged the order dated 29.11.2008 by fling this second appeal. On hearing the learned counsel for the parties and on perusal of the application for condonation of delay and the order dated 29.11.2008, it is clear that the first appellate court did not commit any error in refusing to condone the delay of 14 years in filing the first appeal. On a bare reading of the application filed by the appellants for condonation of delay, it appears that the applicants have put forth incredible reasons in the application for seeking condonation of delay of 14 years. It is necessary to note that in the application, it is stated that on 30.10.1994 the application was filed by the appellants for grant of certified copy of the judgment dated 30.9.1994. It is worthwhile to consider that Mr. Siraj, the appellant no.4 who was allegedly suffering from diabetes, blood pressure and loss of memory was not recollecting the name of the court, the advocate and the decree passed by the trial court, but all of a sudden in the year 1999 when he received the summons from the Executing Court, he could find out the earlier counsel and instruct him to file the appeal against the judgment dated 30.9.1994. What could have done by the appellants in the year 1994 itself has 4 been done by the appellants in the year 1999, after they received the summons from the Executing Court. If the appellants could have found out the name of the earlier counsel in the year 1999, they could have easily done so in the year 1994 also, after making some efforts in that regard. The appellants have stated in paragraph 4 of the application for condonation of delay that they had received certified copy of the judgment and decree on 30.5.2008, though in paragraph 3, it is stated by the appellants that they received the summons from the Executing Court in the year 1999. There is material contradiction in the contents of paragraph 3 and paragraph 4 of the application for condonation of delay. The story put forth by the appellants for condonation of delay of 14 years in filing the appeal does not only appear to be incredible, but also appears to be false, on a reading of the contents of the application for condonation of delay in filing the appeal. Since the respondents had admitted the documents produced by the appellants along with the application for condonation of delay in filing the appeal, the first appellate court rightly held that there was no reason for permitting the appellants to tender oral evidence to prove the facts in the application for condonation of delay in filing the appeal. It is further necessary to note that apart from the appellant no.4, there were other appellants who could have looked after the 5 matter as the certified copy of the judgment and decree dated 30.9.1994 was applied for immediately after passing of the decree. It is also not stated in the application as to when Mr. Siraj again regained his memory, so as to prosecute the first appeal. It is rather surprising to note that Mr. Siraj, the appellant no.4 had lost his memory, only since the passing of the decree in the year 1994 till the filing of the first appeal after 14 years. The order passed by the District Judge is just and reasonable and does not give rise to any substantial question of law. The second appeal is therefore dismissed with no order as to costs. JUDGE SMP