( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 882 OF 2009 WITH CIVIL APPLICATION NO. 2417 OF 2009 Sanjay s/o. Vishwanath Kulkarni .. Appellant Versus Rajkanya d/o. Shivaji Chalwad and ors. .. Respondents Shri N.D. Kendre, Advocate for the appellant. Shri M.L. Dharashive, Advocate for respondent Nos. 1 & 2. Shri P.P. Dudile, Advocate for respondent Nos. 3,4 & 5. CORAM : P.R. BORKAR,J. DATED : 21.07.2010 P.C. :- 1. This Second Appeal is directed against dismissal of Misc. Application No. 94 of 2006 filed by original defendant No.4 being aggrieved by the judgment and decree passed in Regular Civil Suit No. 121 of 2003, decided on 15.04.2004, by the Joint Civil Judge, Junior Division, Ausa. The Misc. Application was filed for condonation of delay of 745 days in filing the First Appeal in the District Court against decree passed by the Trial Court. The District Court was not satisfied with the reasons given for delay and dismissed the ( 2 ) application for condonation of delay on 20.11.2007. 2. It is stated in the application for condonation of delay that the applicant was serving at Bombay and it was long distance from Latur. Therefore, it was not possible for him to attend the Court on each and every date. He had engaged advocate and even he had paid Rs. 300/- to the advocate as costs for delay for filing the written statement, but said amount was not deposited. As a result, the suit came to be decided without written statement. It is further stated that on 20.04.2006, the applicant while cultivating the land was obstructed by the respondents and at that time he learnt about the decision. Therefore, he immediately applied for certified copies and filed appeal with application for codonation of delay. 3. Heard Adv. Shri N.D. Kendre for the appellant, Shri M.L. Dharashive for respondent Nos. 1 & 2 and Adv. Shri P.P. Dudile for respondent Nos. 2,4 & 5. 4. The learned District Judge has observed in his order that it is very difficult to believe that the advocate ( 3 ) after having received amount of Rs. 300/-, as costs for delay in filing written statement, would not deposit the same in Court. He also disbelieved that merely because the appellant was serving in Bombay, he was unable to contact his advocate. Adv. Shri Dudile pointed out that the appellant was working in Sachivalaya and also made other submissions. But the fact remains that the appellant could have definitely contacted his advocates at Latur and Ausa. Moreover, Adv. Shri Dudile for the respondent has pointed out memo of the Misc. Application filed in the District Court, which shows that the appellant had engaged Basvraj s/o. Shantayya Swami as General Power of Attorney. As such, there was a person, who was resident of Latur, to look after litigation of present appellant – Sanjay. It may be noted that original suit of the year 2003 was pending for more than one year before its decision. 5. It does not appear that any affidavit of the advocate or other evidence is produced to show that the advocate was not available for communication or that he had not deposited the amount paid to him as costs for delay in filing the written statement. It is not possible to accept ( 4 ) the allegation against the advocate without there being sufficient foundation. In-fact, it would not be proper practice to make allegations against undefended person behind his back. It does not appear that any notice was given by the appellant to the advocate regarding his conduct. This Court specifically asked the advocate for the appellant, if any notice was given to the advocate or any action was taken against the advocate for his failure to deposit the amount of costs with the Court. The answer was in the negative. 6. In the circumstances of the case, in my opinion, this is not case where interference in the Second Appeal is called for. No substantial question of law arises. The appeal is dismissed at the stage of admission. 7. In view of dismissal of the Second Appeal, Civil Application No. 2417 of 2009 does not survive. The Civil Application also stands disposed of accordingly. [P.R. BORKAR,J.] snk/2010/JUL10/sa882.09