1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.703 OF 2010 IN SECOND APPEAL STAMP NO.7879 OF 2010 Shri.Baban Maruti Bhagat .. Applicant V/s Rambhau Dagadu Kale .. Respondent Mr.Jyotiram S.Yadav i/by Mr.V.B.Tapkir for the Applicant. Mr.U.B.Nighot for the Respondent. CORAM: R.G.KETKAR, J. DATE : 31st March, 2011. P.C.: 1. Heard learned counsel for the parties. This is an application for condonation of delay of 2 years and 193 days caused in filing the second appeal. The applicant has preferred the second appeal challenging the judgment and decree dated 07.04.2007. The appeal was filed on 22.03.2010. Before filing of the second appeal the applicant had filed Review Application No.449 of 2007 on 04.06.2007. The Respondents opposed that application and contended that the applicant has a remedy of appeal against the judgment and decree passed by the District Court. The learned District Judge rejected the review application on 27.11.2009. The applicant thereafter filed an application for 2 certified copy of the impugned judgment and decree on 04.01.2010. The certified copy was ready on 15.02.2010 and the present second appeal was filed on 22.03.2010. The learned counsel for the applicant therefore submitted that the delay was neither deliberate nor intentional and the applicant was bonafide prosecuting the remedy of review before the learned District Judge. 2. As against this, Mr.Nighot relied upon the judgment of the Apex Court in the case of Ramji Pandey V/s.Swaran Kali, AIR 2011 SC 489. In that case, the Allahabad High Court has set aside the judgment and order dated 24.02.1992 passed by the Additional District Judge, Allahabad in Misc.Case No.494 of 1991. The appellant before the Apex Court filed application for condonation of delay. That was opposed by the Respondent on the ground that the appeal itself was not maintainable before the District Court as it lacked pecuniary jurisdiction to entertain the said appeal. It would have been appropriate on the part of the appellant to have withdrawn the appeal and have filed an appropriate proceedings before the High Court. Though this objection was raised, the appellant proceeded with the appeal. The learned District Judge 3 did not consider the objection about the jurisdiction and allowed the application. That order was set aside by the High Court of Allahabad. In paragraph 13 of the report, the Apex Court observed that the objection of the Respondent was well founded, particularly in view of the fact that at the very initial stage, the Respondent had taken a clear objection that the District Court did not have jurisdiction to try and dispose of the appeal The appellant ignored that objection and even the learned District Judge while allowing the application ignored that fact. In the light of these facts, the Apex Court came to the conclusion that the High Court correctly came to the conclusion it reached. This case however is not applicable to the present case, as it is not shown by the Respondent that the remedy of review was not available to the applicant. 3. Having regard to the facts and circumstances of the case, in my opinion, the applicant has made out sufficient case for condoning the delay. Hence, Civil Application is allowed in terms of prayer clause (a), with no order as to costs. (R.G.KETKAR, J.)