１ IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 898 OF 2008 IN CIVIL APPLICATION NO. 4390 OF 2009 Jangirkhan s/o Noorkhan & others ... APPLICANTS V E R S U S Babukhan s/o Hussainkhan & others ... RESPONDENTS ________________________________________________________ Shri. K. T. Shirurkar, Advocate for the applicants Shri. D. K. Kulkarni, Advocate for the respondents ________________________________________________________ [ CORAM : A.V. NIRGUDE, J. ] DATE : 25TH SEPTEMBER,2009 PER COURT : 1. This appeal is filed against the order passed by the learned Principal District Judge, Jalna in Miscellaneous Civil Application No. 99 of 2000 dated 5th March, 2008. The litigation has a checkered history. The appellants had filed suit bearing R.C.S. No. 33 of 1990 for declaration of ownership, possession and for mesne profits of certain agricultural land. The respondents No. 1 (a) and 1 (b) are appellants’ cousins, whereas remaining respondents are purchasers of the suit property. Unfortunately, ２ the suit remained pending for 10 long years, and on 24th July, 2000 it was dismissed. The last day of limitation for filing of first appeal was 31st August, 2000, but the appellants filed the appeal on 4th November, 2000. The filing of the appeal was delayed by about 58 days. The appellants mentioned certain reasons as to why they could not approach the first Appellate Court within limitation. Their application was opposed by the respondents. The learned District Judge rather belatedly in 2008 rejected the application, mainly on the ground that the appellants could not explain the delay of about two months. She observed that all the appellants were adult members of the family, and if one, to whom the litigation was entrusted, fell ill, the other could have taken over the management of the same and could have reached the Court within limitation. Indeed this logic is not incorrect. But the question is, whether such strict view should have been taken when the appeal was delayed only by about 58 days. One cannot ignore the long pendency of the suit and also long pendency of the application before the Appellate Court. The learned District Judge should have taken a pragmatic view, should have condoned the delay and should have provided one more opportunity to the appellants to get their suit decided on merits. I think the appeal deserves to be allowed. The appellants should be saddled with ３ costs of Rs.5,000/- (Rupees Five Thousand) which shall be payable to the contesting respondents. On the appellants’ depositing Rs. 5,000/- as costs in this Court on or before 4th November, 2009, the appeal shall stand allowed and the delay in filing of the first appeal shall stand condoned. If the costs is not deposited, as directed above, the appeal shall stand dismissed. If the costs is deposited and the appeal is allowed, the impugned order rejecting the application No. 99 of 2000 shall stand set aside and application shall stand allowed. The learned Principal District Judge Jalna shall then decide the appeal expeditiously. The amount of costs shall be paid to the respondents No. 2 (a) and 6 or their Advocate. Consequently, Civil Application No. 4390 of 2009 stands disposed of accordingly. ( A. V. NIRGUDE, J ) srm/sa898.09