1 ca1234-10.sxw KBP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1234 OF 2010 IN SECOND APPEAL [STAMP] 18934 OF 2010 Smt.Vaishali Arvind Jamdade and anr. ..Applicants Vs Shamrao Maruti Jamdade and ors. ..Respondents -- Mr.Pritesh Bohade h/f.Mr.Dilip Bodake, for applicants. Mr.P.M.Arjunwadkar, for respondent nos.1 to 5. -- CORAM : R.G.KETKAR, J. DATE : 3 rd MAY, 2011 P.C: Heard Mr.Pritesh Bohade, learned counsel for the applicants and Mr.P.M.Arjunwadkar, learned counsel for respondent nos.1 to 5. 2] This application is taken out for condonation of delay of 2236 days in filing Second Appeal. In paragraph 7 of the application it is averred that after the death of husband of applicant no.1, respondents had driven her from the house and she was residing at the mercy of her parents at Patan. At that time, applicant no.2 Aishwarya was 10 months’ old. Applicant no.1 was studied upto 12 th standard at the time 2 ca1234-10.sxw KBP of marriage and after the death of her husband, her father incurred expenditure so that applicant no.1 could secure admission to one year’s course of Diploma in Computer in June, 2001. Because of paucity of funds, she could not take further education. In paragraph 8 of the application, it is averred that from June 2005 applicant no.1 took admission to F.Y. B.A. Course and completed said course in April, 2007. She is appointed as Assistant Teacher in a school and the said school was unaided till April, 2009. In paragraph 11 of the application, it is averred that applicant no.1 is also detected with HIV positive therefore, her mental condition was not sound. In support of this, she has produced medical certificates and medical reports for the period from 2000 to 2010. 3] The learned counsel for respondents opposed this application He invited my attention to the reply filed by the respondents wherein the assertions made in the application have been denied. So far as the assertions made in paragraph 11 are concerned, the respondents have denied genuineness of medical certificates relied upon by the applicants. The learned counsel for respondents further contended that the applicants have not produced cogent evidence to substantiate the said claim. It is contended that the averments made in paragraph 7 of the application and documents in support thereof are irrelevant. It is further averred that there is substantial delay caused in filing the Second Appeal and no case is made out for condonation of delay. 3 ca1234-10.sxw KBP Since the delay is of 6 years in filing the application, the application deserves to be dismissed by imposing exemplary costs of Rs.15,000/- 4] I have considered the rival submissions made by learned counsel for the parties. It is not in dispute that the applicants instituted suit for partition. The said suit came to be decreed and being aggrieved by the said decision, original defendant no.1 preferred appeal and defendant no.2 preferred cross objections. The learned District Judge has allowed the appeal and declared that applicants/plaintiffs have 2/15 th share, the original defendant no.2 has 4/15 th share, original defendant no.1, defendant no.3 and defendant no.5 have 3/15 th share each in the suit properties. This decree is passed by the learned Addl. District Judge on 6 th March, 2004 and present appeal is filed in 2010. 5] In support of this application, the applicants have relied upon medical certificates which show that applicant no.1 is detected with HIV positive and that she is undergoing treatment. The respondents have denied this contention. However, it is relevant to note that except their denial, they have not produced any material to disbelieve the certificates produced by the applicants. After the death of husband of applicant no.1, she was driven along with applicant no.2 from her matrimonial house. It is material to note that applicant no.1 is living at her parents’ house at their mercy. I am clearly of the 4 ca1234-10.sxw KBP opinion that the interest of justice would be served by condoning the delay. Considering the controversy between the parties, the background of the case as also illness of the applicant no.1, if the delay is not condoned, the matter will stand dismissed on technical ground. On the other hand, if delay is condoned, at the highest, the case will be heard on merits. In view thereof, I am of the opinion that applicants have made sufficient cause for condonation of delay. Hence, Civil Application is allowed in terms of prayer clause (a) with no order as to costs. [R.G.KETKAR, J.]