1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.699 OF 2009. Choka S/o Limbaji Kamble ... Appellant. Versus Vithal S/o Limbaji Kamble and others ... Respondents. ... Mr.B.S.Shinde, advocate for the appellant. Mr.G.O.Wattamwar, advocate holding for Mr.S.G.Rudrawar, advocate for the Respondent Nos. 1 to 4 and 7. ... CORAM : V.R.KINGAONKAR,J. Date : 09.12.2009. PER COURT 1. This appeal arise out of judgment and decree rendered by the trial Court which stood confirmed due to dismissal of delay condonation application filed by the appellant before the 2 first appellate Court. 2. It is not necessary to elaborately set out the rival pleadings. Suffice it to say that the appellant is original plaintiff and had filed suit for declaration of ownership and perpetual injunction. He asserted that he is owner and possessor of land S.No.181 (G.No.218) admeasuring 85 Ares situated at village Masud. He further asserted that the defendants were causing disturbance to his lawful possession. The defendants denied all the material averments made by the appellant (plaintiff). The trial Court decreed the suit partly to the extent of declaratory relief. However, relief of perpetual injunction was denied and the suit was dismissed to the extent of said relief. Feeling aggrieved, the appellant preferred first appeal which was delayed by 51 days. He filed an application (Misc.Application No.61/2008) for condonation of the delay. The application came to be dismissed and as such the appeal itself was dismissed. 3. The appellant submitted before the 3 first appellate Court that after delivery of the impugned judgment dated 10th September 2008, he was unwell. He was advised to take bed-rest. He could not, therefore, preferred the appeal within prescribed period of limitation. His application was supported by medical certificate. The Respondents placed on record a letter issued by the Irrigation Department which indicated that the appellant was attending duty as watchman during the relevant period. The first appellate Court held that the appellant was not under disability during the relevant period and, therefore, the delay caused by him could not be condoned. 4. Heard learned counsel. 5. So far contention of the delay is concerned, it is well settled that the Courts should be liberal while deciding the applications for condonations of delay. The litigant is unlikely to gain anything by committing delay. There could be no intention of the appellant to cause delay in filing of the appeal before the 4 first appellate Court. He filed his own affidavit in support of the application. The learned Additional District Judge did not discuss as to why the affidavit of the appellant was unbelievable. 6. There were two documents on record. First one was the medical certificate produced by the appellant. Another was the letter which was filed by the Respondents. No one was examined to prove recitals of the letter dated 24.3.2009. It is also rendered in obscurity as to on what date the appellant had attended the office work and what was the scheduled time for office work as watchman. The learned Additional District Judge has not assigned any reason to dislodge the medical certificate nor it was the case of the Respondents that the medical certificate was forged and fabricated document. If the learned District Judge had been unable to accept the reason shown by the applicant (appellant) then it was open to call the Medical Officer in order to find out whether the certificate is forged and fabricated document. That was not done. 5 7. Considering the reasons assigned by the first appellate Court, I am of the opinion that the order is unsustainable. The delay was properly explained and should have been condoned. The impugned order deserves to be interfered with. 8. In the result, the appeal is allowed and the delay condonation application filed by the appellant before the first appellate Court be deemed as granted subject to costs of Rs.1,000/- (Rupees one thousand) payable within three (3) weeks. If the costs are deposited in the Court of learned District Judge,Hingoli within four (4) weeks, the appeal of the appellant be registered on assumption that the delay is condoned. The appeal be thereafter heard on merits and decide as per the merit thereof. (V.R.KINGAONKAR,J.) asp/office/sa69909