IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CIVIL APPLICATION (CAS) NO. 1235 OF 2018 IN SECOND APPEAL (ST) NO. 7126 OF 2018 (Dnyaneshwar Tukaram Tayade (dead) through L.Rs. V/s Shankar Leelara Bhojwani & Anr.) Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders Appearances, court’s orders or directions and Registrar’s orders Mr. S. S. Deshpande, Advocate for Appellant.

Mr. S. A. Chaudhari, Advocate for Respondent No.1.

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CORAM : ROHIT W. JOSHI, J.

DATE : MAY 07, 2025.

CIVIL APPLICATION (CAS) NO. 1235 OF 2018 . This is an Application for condonation of delay of

1125 days in filing Second Appeal.

2. The Judgment and Decree passed by the learned first appellate court is dated 24^th November, 2014. The Appeal is filed along with Application for condonation of delay on 23/3/2018. The delay is sought to be explained stating that initially the Advocate appearing before the first appellate court did not inform the Appellant about the adverse Judgment and Decree passed in Regular Civil Appeal No. 15/2009. He states that he was under impression that the appeal was pending, despite the fact that it was already dismissed.

3. It is mentioned in the Application that after realizing that the appeal was dismissed, he had approached the Advocate at Nagpur for filing Second Appeal. The Appellant states that he made to understand that Appeal was filed by the Advocate hails from Nagpur, although the same was not infact filed. It is stated that he was hospitalized at a private Hospital at Buldhana namely, ‘Nikam Hospital and Critical Care Center’ between 10/5/2015 to 14/5/2015, since he was suffering from COPD exacerbation with enteric fever. He states that he was also suffering from paralysis from November-2015.

4. In such circumstances, he could not keep a track of the matter, as he would otherwise have kept. The Appellant has filed a Medical Certificate dated 14/3/2018 issued by Dr. Gajendra Nikam of Nikam Hospital, Buldhana and other documents with respect to his hospitalization including discharge summary showing hospitalization from 10/5/2015 to 14/5/2015. Some documents showing continue treatment, such as, medical prescriptions etc.. for the months of March-2018 and May-2018 are also filed on record.

5. The Respondents have strongly opposed the Application by filing reply dated 16/11/2021. The Respondents have stated that the reason mentioned in the Application for condonation of delay is not genuine. It is stated that even if it is assumed that the Appellant was suffering from the alleged ailment, that by itself cannot be a reason for condoning inordinate delay of around three years.

6. Having heard the rival submissions and on perusal of the pleadings and documents filed along with the Application and additional affidavit, it appears that the contention with respect to ailment of the Appellant is not false. May be the Appellant could have been more diligent in pursuing the matter. Apart from this, Appellant also states that initially he was not made aware about the adverse Judgment passed by the first appellate court and thereafter despite entrusting the papers to the Advocate at Nagpur, Appeal was not filed.

7. Having regard to the totality of circumstances and with a view to afford an opportunity to the Appellant to pursue his remedy of Appeal, I am inclined to condone the delay, subject to payment of costs of Rs.10,000/- to be paid to the Respondents within a period of six weeks from today.

8. Civil Application stands disposed of accordingly.

(ROHIT W. JOSHI, J.)

vijaya