1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CIVIL APPLICATION (F) NO. 2706 OF 2009 in FIRST APPEAL (St.) NO. 6043 OF 2009 (Smt. Yamunabai Pundalik Khonde ..vs.. Dipawali Construction Co. Pvt. Ltd.) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. P.P.Kotwal, Advocate for the Applicants Mr. Rahul Tajne, Advocate for the Non-applicant. C ORAM : F.M.Reis, J. DATED : 7th January, 2010. Heard learned counsel for the applicant- appellant and non-applicant-respondent. This is an application for condonation of delay of 77 days in filing First Appeal. It is the case of the applicant that the counsel, who was conducting the matter for the applicant before the trial court, had studied the case papers and was requested to prepare the appeal. But, however, on account of his pre- occupations, the brief was handed over to another Advocate Shri P.P.Kotwal. The said Advocate being engaged with some other assignment and in view of an 2 accident caused to the brother of Advocate Shri Kotwal on 28/1/2009, who was hospitalized, the delay occurred in filing the appeal against the impugned judgment. Thereafter, on account of illness of the father of said Advocate, further delay has occurred in filing the appeal. The appeal was filed on 30/4/2009 and as such, there is in all delay of 77 days in filing the present appeal. The respondent has disputed the contentions of the applicant, though the facts that the said counsel were engaged to file the appeal, have not been disputed. The law is well settled that the matters are to be adjudicated on merits. No case is made out by the respondent that the applicant has deliberately delayed the filing of above appeal. On the contrary, there is substantial explanation by the applicant on oath to the effect that the applicant had diligently engaged the counsel and it was due to inaction on the part of his counsel that the appeal came to be filed belatedly. The litigant cannot be prejudiced on account of default or inaction on the part of counsel. In the facts and circumstances of the case, I 3 find that the applicant has made out a case for condoning the delay, but subject to payment of some costs. In view of above, the application for condonation of delay of 77 days in filing the First Appeal is granted, subject to payment of costs of Rs.750/- to the High Court Legal Services Sub- Committee, Nagpur, within a period of two weeks. Civil Application is disposed of accordingly. JUDGE. Diwale