1 AO 57/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.57/2011 WITH CA NO.4686/2011 1) Keshav Bhaurao Vhore & Ors. - APPELLANTS VERSUS Narayan s/o Tukaram Bhise - RESPONDENT ***** Mr.V.C.Solshe, Advocate for Appellants; Mr.MP Kale, Adv.for Respondent. ----- CORAM : S.S.SHINDE, J. DATE : 27th July, 2011. PER COURT : 1) Heard learned Counsel for the parties. This Appeal from Order is directed against the order dated 13.12.2010 by the Ad hoc District Judge-1, Gangakhed. The respondent herein, who is the original plaintiff, has filed RCS No. 195/1993 for recovery of possession and mesne profits against the appellants/defendants in the court of Joint Civil Judge, Junior Division, Gangakhed. The said suit came to be decreed. The appellants herein filed Regular Civil Appeal No. 102/2002, which is re-numbered as RCA No.51/2004 on 11th September, 2002. 2 AO 57/2011 2) It is the case of the appellants that after establishment of the court of Ad hoc District Judge, at Gangakhed, the RCA No.102/2002 was transferred to the court of Ad hoc District Judge, Gangakhed and the same was re-numbered at RCA No.51/2004. 3) On 10th July, 2007, the Ad hoc District Judge, Gangahed was pleased to dismis the RCA No. 51/2004 (old No.102/2002). 4) The appellants herein on 23.10.2008 filed an application being No. M.A.(RJE) No. 10/2008 for re-admission of RCA No.51/2004, stating the reasons for non-appearance and for delay caused in filing the application. The Ad hoc District Judge, Gangakhed, by order dated 13.12.2010 below Exhibit-1 in M.A.(RJE) No. 10/2008, is pleased to dismiss the application for re-admission of RCA No.51/2004. The application which was filed for condonation of delay, came to be rejected on 13.12.2010. Hence, the present Appeal from Order. 5) The learned Counsel appearing for the appellants submits that the new court at Gangakhed was established and the appeal, which was pending at the principal seat at Parbhani, came to be transferred to the court at Gangakhed. 3 AO 57/2011 The appellants were not aware about such transfer of appeal from Parbhani to Gangakhed. They did not receive any notice from the court that their appeal is transferred from Parbhani to Gangakhed. It is further submitted that though the advocate was communicated by the appellants, however, he did not inform the appellants about such transfer of their appeal from Parbhani to Gangakhed. The learned Counsel further submits that immediately after knowledge of the said fact that their appeal is transferred from Parbhani to Gangakhed, immediately they filed an application for re- admission of the appeal along with an application for condonation of delay. However, by assigning cryptic reasons, the District Judge, Gangakhed rejected the application for condonation of delay. He further submits that in the first instance, the appellants did not receive any notice from the District Court, Parbhani about transfer of the appeal from Parbhani to Gangakhed; and secondly, the advocate, who was engaged by them , did not inform them about the transfer of the said appeal and, therefore, the appellants should not suffer. 6) On the other hand, the learned Counsel appearing for the respondent submits that there was delay of more than 400 days. There was no sufficient cause, which was disclosed in the 4 AO 57/2011 application moved for condonation of delay. As a result, after considering the explanation offered by the appellants in the application for condonation of delay, by elaborate reasons the impugned order is passed by the District Judge-1, Gangakhed, which requires no interference by this court, and, therefore, this Court may not interfere in this Appeal from order. 7) I have given due consideration to the submissions advanced by the learned Counsel appearing for the parties. In my opinion, if the proceedings of the appeal are transferred from Parbhani to Gangakhed, it was necessary to issue such notice/communication to the appellants informing them that the appeal which was filed by them at principal seat at Parbhani has been transferred to Gangahed. 8) After all, right of appeal is a substantial right of the parties and the same should not get defeated by mere technicalities. Dismissal of the appeal in default would certainly affect the substantial right of the appellants. Though the advocate was communicated by the appellants to represent their case at Parbhani, according to them, there was no communication by the advocate to the appellants about transfer of their appeal from Parbhnai to 5 AO 57/2011 Gangakhed. 9) It is true that there is delay of more than 400 days in filing the application seeking re-admission of the RCA No.51/2004, however, the length of delay is not important, but the sufficient cause disclosed by the appellant seeking condonation of delay matters. Therefore, in the facts and circumstances of this case, the contention of the appellants that there was no communication/notice about transfer of their appeal from Parbhani to Gangakhed, is required to be accepted. 10) In that view of the matter, in my opinion, case is made out by the appellants. However, the respondent is required to be compensated for loss of time by awarding some cost on the appellants. Therefore, end of justice would meet if the appellants are directed to pay costs of Rs.5,000/- (Rupees five thousand) in the court of District Judge-1, Gangakhed, within four weeks from today. The deposit/payment of costs of Rs.5,000/- is pre-condition for restoration of the appeal in question. 11) The impugned judgment and order dated 13.12.2010 is quashed and set aside. The delay, caused in filing the application, seeking re- 6 AO 57/2011 admission of the appeal is condoned. Consequently, the order dated 10.7.2007 dismissing the appeal for want of prosecution also stands quashed and set aside. The Regular Civil Appeal No.51/2004 (old No.102/2002) is restored to its original file. Upon, appellants' depositing costs of Rs.5,000/-, the respondent will be entitled to withdraw the same without any formal application. 12) The Appeal from Order is allowed to the extent indicated above and same stands disposed of. Since the AO itself is disposed of, CA No. 4686/2011 also stands disposed of. (S.S.SHINDE) JUDGE bdv/