1 SA 128.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 128 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mrs.Kulkarni, Advocate holding for Mr.S.M.Kulkarni ,Advocate for the appellant. Mr.M.B.Kolpe,Advocate for Resp. no. 1 to 5. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 PER COURT : 1. The present plaintiff had filed Suit for declaration and injunction. The said Suit came to be dismissed. The plaintiff preferred Appeal. During the pendency of Appeal, as none remained present for the appellant, the Appeal was dismissed purporting to be under Order XLI Rule 17 of the Code of Civil procedure. The plaintiff filed an application for re-admission of the Appeal along with an application for condonation of delay as it was delayed by 23 days. The said application bearing Misc. Application No. 21 of 2010 was dismissed by Order dated 28/7/2010. The 2 SA 128.2011 appellant has assailed the said order in the present Second Appeal. 2. Mrs. Kulkarni, the learned counsel for the appellant contends that the delay was only of 23 days and the same was properly explained, but the Court below has taken hyper technical approach and as such has rejected the application. The learned counsel further contends that the dispute in respect of immovable property is involved in the present Second Appeal. 3. Per contra, Mr. M.B.Kolpe, the learned counsel for the respondent submits that the Court below was justified in dismissing the application in as much as this was the second occasion. Earlier in the year 2004, the Appeal was dismissed. Thereafter it was restored in 2008. Again it was dismissed. The learned counsel further submits that the Court below has given sufficient reason for the rejection of the application. 4. It is a trite law that the application for condonation of delay has to be liberally construed. The expression ‘ sufficient cause ’ has to be construed in a liberal manner. When the technical considerations and cause for substantial justice are pitted against each other, the cause for substantial 3 SA 128.2011 justice should prevail. The delay was not inordinate. The applicant has explained on affidavit the reasons for delay. The Court below should have taken into consideration the same. In view of the fact that the applicant had stated that she was ill and as such could not attend the matter and delay was caused, should have been accepted. 5. In light of the above, I am inclined to allow the Second Appeal. The impugned Order dated 28/7/2010 in Misc. Application No. 21 of 2010 is quashed and set aside and Misc. Application No. 21 of 2010 is allowed subject to payment of Rs. 1,500/- (Rupees One Thousand Five Hundred only) to the present respondents. The costs be paid within the period of four ( 4 ) weeks from today. [ S.V. GANGAPURWALA,J. ] KNP/SA 128.2011