( 1 ) sa120.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 120 OF 2011 WITH CIVIL APPLICATION NO. 3555 OF 2011 Bhau s/o. Maruti Darade .. Appellant Age. 40 years, Occ. Agri., [original R/o. Bhogalwadi, Tal. Dharur, defendant Dist. Beed. No. 3] Versus 1. Vishnu s/o. Pandurang Munde .. Respondents Age. 55 years, Occ. Agri., [No.1 ori.plaintiff, 2. Rambhau s/o. Pandurang Munde Nos. 2 to 7 Age. 70 years, Occ. Agri., original defendant 3. Namdev s/o. Rambhau Munde No. 1,2 & 4 Age. 40 years, Occ. Agri., to 7] 4. Madhukar s/o. Laxman Munde Age. 42 years, Occ. Agri., 5. Atmaram s/o. Sakharam Munde Age. 40 years, Occ. Agri., 6. Ramkisan s/o. Sakharam Munde Age. 35 years, Occ. Agri., All above r/o. Bhogalwadi, Tal. Dharur, Dist. Beed. 7. Uttam s/o. Pandharinath Kendre Age. 40 years, Occ. Agri., R/o. Kekat Sarni, Tal. Kaij, Dist. Beed. ( 2 ) sa120.11 Mr. V.S. Undre, Advocate for the appellant. Mr. R.F. Totla, Advocate for respondent No.1. Mr. R.B. Temak, Advocate for respondent Nos. 5 & 6. CORAM : A.V. NIRGUDE, J. DATED : 29.06.2011 ORAL JUDGMENT :- 1. In view of judgment of the Supreme Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal & Ors., (2005) 1 S.C.C. 436, this appeal is maintainable as a Second Appeal. 2. By consent of learned Counsel appearing for the parties, this appeal is taken up for final hearing. 3. The second appeal is admitted on the following substantial question of law :- “Whether the learned Adhoc District Judge-1, Majalgaon, was justified in applying the ratio of judgment of this Court in the case of Kamalbai w/o. Nara Saiyya Shrimal Vs. Ganpat s/o. Vithalrao Gavare, 2007 (1) Mh.L.J.807, is correct?” ( 3 ) sa120.11 4. On the face of it, the impugned order is unjustifiable. The present appellant was one of the defendants in Regular Civil Suit No. 242 of 2002, which was filed before the learned Civil Judge, Junior Division, Kille Dharur, Dist. Beed. This was a suit for declaration of ownership and possession in respect of an agricultural land. There were in all seven defendants. Present appellant was defendant No.3. The cause of action for the respondent’s suit was that he was owner of the suit land. He said that in order to secure certain loan, he executed conditional sale- deed of the same as security in favour of defendant No.1. It was agreed between the parties that the respondent/plaintiff would be entitled to re-deem the mortgage on expiry of seven years etc. He alleged that despite this agreement, during the period of seven years, original defendant No.1 sold land to different parties and one of them is the appellant/defendant No.3. It appears from the record that present appellant engaged one advocate to defend his case, so also some more defendants engaged different advocates for defending their cases. The record further shows that some defendants did not appear at all before the Court and the suit ( 4 ) sa120.11 proceeded against them ex-parte. It seems that neither of the defendants, who had engaged the advocates, filed written statements. So, the learned Judge of the Trial Court delivered the judgment ex-parte against them on 23.01.2009 holding that the respondent/plaintiff had proved his case and was entitled to possession of the land. 5. Despite the serious nature of the claim, apparently the appellant herein as well as other defendants did not go before the Court with written statement. The learned Judge of the Trial Court recorded evidence of the respondent/plaintiff and then decreed the suit. 6. The present appellant alone filed appeal against the judgment and decree of the Trial Court but the same suffered delay of only eight days and the learned Adhoc District Judge-1, Majalgaon, rejected the application firstly because there was no documentary evidence to show that the appellant was suffering from Typhoid and therefore was unable to approach the advocate in time and thereafter he referred to the ratio of the judgment of ( 5 ) sa120.11 Kamalabai’s case. 7. On the face of it, there was no need to refer to the ratio of this judgment, if the learned Judge was convinced that the appellant’s case was unbelievable for want of documentary evidence. The judgment is patently incorrect also because the learned Judge did not take lenient view of the fact that the delay was of only eight days. He should not have demanded documentary evidence to prove the illness of the appellant. It is now settled law that in the situation of this nature, the Appeal Court should be lenient. I, therefore, find that the findings recorded by the learned Judge that he would not believe case of the appellant for want of documentary evidence is patently incorrect. I should allow the appeal and condone the delay caused in filing of the First Appeal. 8. The appeal is allowed. The order of the learned Adhoc District Judge-I, Majalgaon, dated 04.12.2010, stands set aside. The learned Judge of the First Appeal Court shall register the appeal and ( 6 ) sa120.11 decide according to law. 9. In view of disposal of the second appeal, the civil application for stay does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/JUN11/sa120.11ok