1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5731 OF 2010 Dhudku S/o Bhoju Marathe Age 75 years, Occ-Agril R/o Varul, Tq. Sindhkheda Dist.Dhule. .. PETITIONER V E R S U S 1] Pitambar S/o Supadu Marathe Age Major, Occ-Agril R/o Varul, Tq. Sindhkheda Dist.Dhule. 2] The Maharashtra State Co-op & Development Bank, Mumbai Br. Dondaicha, Tq. Sindhkheda Dist.Dhule 3] Varul Chaugaon Vividh Karyakari Sewa Sahkari Society Limited Varul-Chaugaon, Tq. Sindhkheda Dist.Dhule. ..RESPONDENTS .... Shri Abhishek G. Kulkarni Advocate for the petitioner. Shri A.D.Pawar,Advocate for the respondent No.1. .... CORAM : R.M.BORDE, J. DATE : 9 th SEPTEMBER, 2010. 2 ORAL JUDGMENT : 1] Heard learned counsel for respective parties. Rule. Rule made returnable forthwith. By consent of parties, petition is heard finally at admission stage. 2] An application tendered by petitioner-appellant before first appellate Court seeking condonation of delay of about 10 months in applying for restoration of the appeal, came to be rejected by first appellate Court in view of order passed on 30/4/2010. Respondent No.1 original plaintiff instituted suit being Regular Civil Suit No.61/2000 seeking decree for specific performance of contract against petitioner original defendant. The suit came to be decided and the same was decreed by the trial Court on 23/9/2004. Thereafter, petitioner herein original deft.No.1 presented an appeal being Civil Appeal No.3/2005 before the District Court at Dhule. During continuance of Appeal when, it was posted for final 3 arguments, counsel for the appellant as well as appellant were absent and did not take steps to prosecute the appeal, as such the same came to be dismissed for want of prosecution on 25/3/2009. An application was presented by appellant on 25/2/2010 seeking restoration of the appeal as well as for condonation of delay of 10 months caused in preferring application for restoration of appeal . In the application, it is contended by the appellant/petitioner herein that he had been to Gujrat for earning livelihood and as such he could not take steps for prosecuting the appeal. The first appellate Court did not find the reason given in the application to be convincing, as such turned down the application. 3] I have perused application as well as impugned order passed by first appellate Court. The reasons recorded in the application by the appellant/petitioner herein that he was away in Gujrat and as such could not remain present when the appeal was taken up for consideration in the year 2009, 4 does not appear to have been contradicted. Merely because the appeal remained pending from 2005 till 2009 and the appellant has not explained cause of his absence right from 2005, cannot be a reason for turning down application. It has been demonstrated by the appellant that when the appeal was taken up for consideration, he was away and as such could not prosecute the appeal. The first appellate Court did not find it as sufficient ground for restoration of appeal. Even after recording in the order that liberal approach has to be adopted in such matters, strangely enough the appellate Court proceeded to reject application. Ends of justice would be met if appellant is directed to deposit amount of costs, considering the matter under appeal being entitlement to the immovable property, appeal needs to be dealt with on merits. 4] The application therefore, deserves to be allowed and same is accordingly allowed. The order passed by the first appellate Court on 30/4/10 below Exh.1 in Misc.Civil Appeal 5 No.24/10 is quashed and set aside. The delay of about 10 months occurred in presenting application seeking condonation of delay stands condoned. The application submitted before first appellate Court for restoration of appeal also deserves to be allowed and the same is allowed. The first appellate Court shall take up the appeal for consideration and decide the same on its own merits in accordance with provisions of law. The first appellate Court shall decide the Appeal as expeditiously as possible and preferably within 6 months from today. Petitioner herein original defendant shall deposit an amount of costs of Rs.5000/- with the first appellate Court within 4 weeks. The respondent No.1-original plaintiff shall be entitled to withdraw the amount deposited by petitioner- orig.deft.No.1 before first appellate Court. Rule is made absolute in above terms. (R.M.BORDE) JUDGE umg/wp5731-10