sa206.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.206 OF 2011 WAMAN TANAJI BHAVSAR ... APPELLANT. VERSUS DILIP PRALHAD KHOSTI ... RESPONDENT ... Advocate for Appellant : Mr.Yawalkar Siddharha B. Advocate for Respondents : Mr. Patil V P ... CORAM:S.S. SHINDE,J. Dated: November 23, 2011 PER COURT: Heard learned Counsel for the appellant and the respondent. 2 This second has been filed challenging the judgment and order dated 14th January, 2011 passed by the District Judge-1, Jalgaon in Misc. Civil Application No.126 of 2009. By the impugned order, sa206.11 2 the application for condonation of delay caused in filing first appeal came to be rejected. Hence, this second appeal. 3 The learned Counsel for the appellant invited my attention to the contents of the application and also copies of the discharge card and all other documents showing that the wife of the appellant was suffering from some ailment and therefore, the appellant could not prefer appeal within period of limitation. Therefore, according to the learned Counsel for the appellant, this appeal deserves consideration. 4 On the other hand, the learned Counsel for respondent vehemently opposed the second appeal and submitted that the second appeal does not raise any substantial question of law, delay in filing the first appeal was not properly explained and, therefore, by the impugned order the application for condonation of delay has been rightly rejected by the District Judge, Jalgaon. sa206.11 3 5 I have given due consideration to the rival submissions of the parties. Following substantial question of law falls for consideration: Whether the District Judge, Jalgaon could have rejected the application for condonation of delay in filing the appeal though sufficient cause was disclosed in the application for condonation of delay, supported by documentary evidence that the wife of the appellant was suffering from ailment, thereby defeating the substantial right of the appellant to prosecute the appeal? 6. I have carefully perused the contents of the application for condonation of delay, which is placed on record at page Nos.13 to 15 at Exh.B. Paragraphs 2 to 4 of the said application clearly show that there was sufficient cause for condonation of delay. The wife of the appellant had undergone eye surgery and she was also suffering from heart ailment and therefore, admitted in hospital from April, 2009 to May, 2009. There is also mention that further treatment was done at Gajanan Heart & Eye hospital sa206.11 4 run by Dr. Vivek D. Chaudhari in the month of May & June. The appellant, therefore, could not file the first appeal in time. 7 Perusal of the paragraphs 2 to 4 of the application makes it abundantly clear that the averments in the said application are in particular and also supported by documents placed on record. Upon perusal of pages 24 to 48 of the compilation of the second appeal, I find that number of documents are placed on record which would clearly indicate that during the relevant period, the wife of the appellant was suffering from certain ailment and was admitted in hospital. 8 It is true that by delayed filing of appeal, some inconvenience or prejudice has been caused to the other side. However, if sufficient cause has been disclosed in the application for condonation of delay, supported by documents, normally, the Court should adopt liberal approach by imposing some costs on the sa206.11 5 applicant. However, by taking hyper technical view the substantial right of the appellant to prosecute appeal gets defeated if the application for condonation of delay is rejected. 9 In that view of the matter, in my opinion, second appeal deserves to be allowed by setting aside the impugned order. 10 Accordingly, the judgment and order dated 14th January, 2011 passed by the District Judge-1, Jalgaon below Exh.1 in Misc. Civil Application No.126 of 2009 is quashed and set aside. The application Exh.1 for condonation of delay stands allowed. The delay stands condoned. However, as observed herein above, to compensate the respondent, appeal is allowed subject to depositing Rs.3000/- before the District & Sessions Judge, Jalgaon. Upon deposit of such costs, the respondent herein will be entitled to withdraw the said amount without any condition. It is needless to mention that unless costs is deposited, sa206.11 6 the concerned Court shall not proceed with the appeal. Second Appeal is allowed accordingly and disposed of. [ S.S. SHINDE ] JUDGE. PLK/*