{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.541 OF 2011 Babasaheb Abdul Jabbar Deshmukh, age: 56 years, Occ: Agriculture, R/o Sillod, Tq. Sillod, Dist.Aurangabad. Appellant Versus Shaikh Ibrahim s/o Shaikh Nizam, age: 77 years, Occ: Agriculture, R/o Shendurni, Tq. Jamner, District Jalgaon. Respondent Mr. A.D.Kasliwal, advocate for the appellant Mr. S.B.Yawalkar, advocate for respondent CORAM : S.S.SHINDE, J. DATE : 16th November, 2011 PER COURT: 1 Heard learned Counsel for respective parties. 2 This Second Appeal raises following substantial question of law: Whether the lower appellate Court is correct in dismissing the application for condonation of delay though sufficient cause was disclosed in the application for condonation of delay, {2} thereby defeating valuable right of the appellant to file and prosecute the appeal? 3 Learned Counsel for the appellant would submit that the power of attorney holder did not inform the appellant about the progress of the matter before the trial Court about which repeated averments were made in the application for condonation of delay. Another reason given in the application for condonation of delay is about the ailment of the appellant. Learned Counsel for the appellant further submits that even reply is not filed by the Respondent to the application for condonation of delay. It is further submitted that mandate of Order 19 Rule 1 of the Code of Civil Procedure has not been followed by the lower appellate Court. Therefore, learned Counsel for the appellant would submit that this appeal may be allowed. 4 On the other hand, learned Counsel for the Respondent submits that proper reasons are assigned by the lower appellate Court while rejecting the application for condonation of delay. The explanation offered by the appellant in the application for condonation of delay has been properly considered by the lower appellate Court and, therefore, the lower appellate Court felt that the delay cannot be condoned since it is not satisfactorily explained. {3} 5 Upon hearing learned Counsel for the parties and upon considering the aforementioned substantial question of law, in my considered view, the substantial right of appeal of the appellant cannot be defeated on the ground of delay in view of the sufficient cause disclosed in the application for condonation of delay, which was filed before the lower appellate Court. From perusal of the averments made in the application for condonation of delay, it is abundantly clear that it was the case of the appellant that the power of attorney holder did not inform about the progress of the matter to the appellant. It was never the case of the appellant that advocate Mr.Kabra, who was engaged by the power of attorney holder of the appellant, did not inform the progress about the matter. From perusal of para 4 of the judgment of the appellate Court, it is clear the lower appellate Court has proceeded on a wrong footing that advocate Mr.Kabra did not inform the appellant about the progress in the matter. This itself shows that there was non application of mind on the part of the lower appellate Court. That apart, in the absence of any reply filed by the respondent to the application for condonation of delay, in normal course, by imposing some cost, the lower appellate Court should have allowed the application for condonation of delay. 6 For the reasons aforesaid, I am inclined to accept the case of the appellant. Delay caused in filing the appeal before Ad {4} hoc District Judge-3, Jalgaon, stands condoned. The application for condonation of delay stands allowed and disposed of accordingly subject to depositing cost of Rs.5000/- (Rs.Five thousand) by the appellant before the lower appellate Court. Upon deposit of such amount, Respondent will be entitled to withdraw the said amount without any formal application. It is needless to observe that the appeal be heard by the lower appellate Court on its own merits. 7 Appeal stands disposed of in above terms. S.S.SHINDE JUDGE adb/sa54111