1 C.A.NO.10903/2008. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CIVIL APPLICATION NO.10903 OF 2008 IN SECOND APPEAL STAMP NO.20045 OF 2008. Baban s/o Dagdu Gade and others ...Applicants VERSUS Shivaji s/o Bapurao Gadekar and others. ...Respondents. ... Mr.S.V.Gangapurwala,Advocate for the applicants. Mr.Milind Patil, Advocate for respondent No.1. ... CORAM: A.V.NIRGUDE,J. Date : 23rd September, 2009. COURT’S ORDER: 1. This application seeks condonation of delay of more than three and half years caused in filing of this second appeal. The appellants are members of one family. The appellants No.1 and 4 are parents and the remaining two appellants are 2 C.A.NO.10903/2008. their grown up sons. 2. The respondent No.1 filed a Suit for partition in 1994 against the present appellants and others. He sought his share in the joint family property. The suit remained pending in the trial court till 2000 and despite the appellants opposing the same, it was decreed. The appellants then filed first appeal before the learned District Judge, which remained pending till 2005. It was dismissed on 3rd of March, 2005. 3. As said above, after about 3 and half years, the present appeal challenges the judgment and decree passed by the learned Judge of the first appellate court. The appellants are now giving explanation as to why they could not come to this Court within limitation. 4. It is their case that some time prior to 2005, all of them shifted to Indore and started residing there. They said, they have business there and they did not know as to what was happening before the First Appellate Court in their appeal. They said, they did not know that the appeal was dismissed on 3rd March, 2005. They said, on 2nd February, 2007 the appellant No.1 came to their native place for attending wedding in the family, when he learnt about the dismissal of the appeal. The appellant No.1 3 C.A.NO.10903/2008. after attending the wedding, went back to Indore. He said, he then suffered hypertension etc. and was indisposed for quite some time. Thereafter, in September, 2008, he came back to his native place and then he made arrangement to file the present appeal. 5. It is the case of the appellants that the appellant No.1, alone used to look after this litigation since beginning and it was his responsibility to take steps in the matter. 6. On these narrations, the appellants want the Court to condone the delay. On facts, their case is not at all convincing. Assuming that the appellant No.1 was looking after the matter since beginning and was generally responsible for pursing it, when he learnt about the dismissal of the appeal in February, 2007, he could have sent the other two appellants, the grown up sons, to take over the management of the litigation. They could have immediately come to Beed for obtaining certified copies etc. and they could have approached their Advocate at Aurangabad. There is no explanation forth coming as to why this expected simple step was not taken. The explanation offered by the appellants, thus is not at all convincing and so I am not inclined to condone the delay. Despite of this rather weak case, the learned Advocate appearing for the 4 C.A.NO.10903/2008. appellants tried to suggest that since the litigation is in respect of the immovable property, condonation of delay is a rule. He also suggested, the Court should rather look for substantial justice and avoid pedantic approach. He placed reliance on two Judgments of the Apex Court. They are as under: (i) Collector, Land Acquisition, Anantnag and another V/s Mst.Katiji and others (AIR 1987 Supreme Court 1353); (ii) Divisional Manager, Plantation Division, Andaman and Nicobar Islands V/s Munnu Barrick and others (AIR 2005 Supreme Court 1158). 7. He also suggested, there are substantial questions of law involved in this appeal, one of which, he said, is the finding of the trial court that the respondent No.1 had failed to bring before the Court all the pieces of joint family properties. On going through the Judgments, I found that the respondent No.1 purposely avoided to seek partition of the house property saying that he would rather leave it to the occupants of the house- the appellants. He sought partition only of the agricultural lands. Both the Courts below dealt with all the points involved and recorded finding of facts. The application seeking condonation of delay does not deserve 5 C.A.NO.10903/2008. sympathetic consideration. It is dismissed. 8. In view of this, Second Appeal Stamp No. 20045/2008 & All Civil Applications in Second Appeal Stamp No.20045/2008 stand dismissed. All interim orders stand vacated. (A.V.NIRGUDE,J.) lkp