1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.921 OF 2009 With Civil Application No.12825 Of 2009 Lukman S/o Ahmadbhai Thekiya ... Appellant. Versus Maharashtra State Electricity Board, Nanded Circle And Others. ... Respondents. -------- Shri. S.G. Chapalgaonkar,Advocate for the appellant. Shri. S.M. Godsay, Advocate for respondent No. 1. -------- CORAM: R.M. BORDE, J. DATE: 15th FEBRUARY 2010 PER COURT : 1) This is an appeal by the original defendant raising exception to the judgment and order passed by the Ad-hoc District Judge-2 Nanded dated 28-11-2006 in Misc. Civil (RJE) No.152 of 2002. The only question that 2 arises for consideration in the appeal is - “Whether the appellant, original defendant, has exhibited sufficient cause for condoning delay occurred in presenting appeal before the First Appellate Court and whether the First Appellate Court was justified in turning down the request made by the appellant for registration of the appeal by condoning delay ?”. 2) The respondent No.1, original plaintiff, instituted a suit bearing Special Civil Suit No.287 of 1994 claiming recovery of sum of Rs.1,60,211.07 paise along with interest. It is not necessary to go into the factual details and suffice it to say that the suit instituted by the plaintiff was decreed and the trial Court directed the defendant to pay the amount as claimed by the plaintiff along with interest at the rate of 6% per annum on entire amount from the date of 3 presentation of the suit i.e. 15-12-1994 till realization of the amount. The judgment and decree passed by the trial Court was the subject matter of challenge before the First Appellate Court at the instance of the original defendant. However, there occurred delay of about 13 months in presenting the first appeal. The appellant, original defendant, therefore, presented an application to the First Appellate Court requesting the Court to condone the delay. The application was opposed by the respondent by presenting say. The First Appellate Court, after considering the rival contentions, was pleased to reject the application holding that the defendant, appellant herein, has not exhibited sufficient cause for condone delay. 3) I have perused the application as well as the impugned order and heard respective counsel appearing for the parties. 4 4) The original defendant contended in his application that, the suit was proceeded ex parte against defendant No.1. No evidence was led by other defendants also in the suit. It is contended by the defendant in his application that it was informed to him by the Advocate representing him in the trial Court that presence of the applicant is not required on each and every date and he would be informed about the progress of the matter. It is contended that relying on the words of the counsel the defendant did not keep track of the proceedings. It is further contended that during the year 2001 and 2002 his mother was suffering from serious ailments and as such was taking care of his mother. She died on 27-6-2002. The defendant came to know about the decree passed by the trial Court in the month of August 2002 and thereafter he secured certified copy of the judgment in the month of 5 September 2002 and thereafter filed appeal before the First Appellate Court. It is further contended that the delay that has been caused is not intentional and because of the circumstances stated in the application. The application was rejected on the ground that no sufficient particulars are disclosed in the application so as to draw a conclusion that the defendant was not negligent in prosecuting the matter. It was contended that no documentary evidence has been produced to demonstrate the illness of the mother of the defendant and mere statement made by the defendant shall not be relied upon. 5) On perusal of the application as well as the say and the impugned order passed by the First Appellate Court I am of the opinion that the defendant needs to be extended an opportunity to submit his contentions before the First Appellate Court. This Court normally 6 takes a liberal view in matter of condonation of delay. It is appropriate that the dispute between the litigating parties shall be determined on its own merit and the doors of justice shall not be closed to the litigants by raising technical bar. It is also necessary that all the relevant circumstances are to be taken into account and especially the circumstances as to whether the party approaching court late is being benefited because of the delay that has occurred in approaching Court. In the instant matter, the decree passed by the trial Court is in respect of recovery of amount. It is true that the trial Court has passed decree in the year 2001 in respect of recovery of principal amount with interest at 6% per annum. In substance, if the defendant is to be extended an opportunity to raise challenge before the First Appellate Court, he needs to be put to 7 certain terms in respect of deposit of amount. Shri. Chapalgaonkar, learned counsel appearing for the appellant, on instructions states that the appellant would be willing to deposit 50% of the decretal amount before the First Appellate Court. I am of the view that the course adopted by the appellant is reasonable and fair and in the given circumstances the defendant, appellant herein, can be given further more opportunity. 6) In this view of the matter the appeal presented by the appellant, original defendant, stands allowed. The order passed by the Ad-hoc District Judge on 28-11-2006 in Misc. Civil (RJE) No.152/2002 is quashed and set aside. The application seeking condonation of delay presented by the appellant, original defendant, before the First Appellate Court shall be deemed to have been allowed subject, however, to condition in respect of deposit of 8 50% of the decretal amount before the First Appellate Court within a period of six weeks from today. In the event of failure to deposit the amount, as directed above, the order passed in the instant appeal shall be deemed to have been withdrawn. The First Appellate Court shall, on fulfillment of the conditions stipulated above, proceed to decide the appeal on its own merits and in accordance with law. In the circumstances of this case there shall be no order as to cost. The parties agree to cause appearance before the First Appellate Court on 18th March 2010. Civil Application No.12825 of 2009 stands disposed of. (R.M. BORDE, J.) rsl/ sa.921.09