Digitally signed VARSHA by VARSHA VIJAY VIJAY RAJGURU Date:

RAJGURU 2025.05.08

16:07:19 +0530

34-sa-288-2016-cas-546-2016.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY varsha CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 288 OF 2016 WITH CIVIL APPLICATION NO. 546 OF 2016 Suresh Chavgonda Patil (Deceased thr. … Appellants/Applicants Lrs) and Ors vs.

M/s. P.B. Khadilkar, Miraj (through … Respondents Prop. Pravin Prabhakar Khadilkar) and Ors Mr. Sumedh Modak i/b. Mr. Vijay Killedar for Appellants.

Mr. Akshay A. Kulkarni i/b. Mr. A.M. Kulkarni for Respondent No.1.

CORAM : GAURI GODSE, J.

DATED : 28th APRIL 2025 ORDER:

1. Heard learned counsel for the appellants. This appeal is preferred by the heirs and legal representatives of deceased defendant nos.1a and 1b who are also original defendant nos. 3 and 4. The appeal challenges the rejection of the application filed by the appellants for condonation of delay of more than five years in filing the first appeal challenging the trial court’s decree. The trial court decreed the suit and directed the defendants to pay an amount of Rs. 1,72,727/- with interest. The trial court’s decree is dated 26^th March 2009. The appeal was filed in the district court alongwith the application for condonation of delay on 9^th October 2014. The said application is rejected, hence, this second appeal.

2. Learned counsel for the appellants submits that defendant no.2 was not residing at the given address and he had never received suit summons. He submits that the deceased defendant no.1 was karta of the joint family and he was looking after the affairs of the family. He submits that defendant nos. 3 and 4 are sons of defendant no.1. He submits that the deceased defendant no.1 had engaged advocate and filed Vakalatnama on his behalf. However, no steps were taken for filing a written statement and contesting the suit.

3. Learned counsel for the appellants relies upon the relevant averment in the application for delay condonation. He submits that the heirs and legal representatives of defendant no.2, learnt about the trial court’s decree on 14^th March 2013, when the notice of execution was served upon them. He submits that thereafter, they contacted the advocate and have taken steps to supply all the documents for filing appeal. He submits that after taking appropriate steps, the appeal was filed alongwith the condonation delay on 9^th October 2014. He submits that all the particulars are pleaded by the appellants in the application for condonation of delay. He submits that appellant no. 1a examined himself in support of the contentions in the application. He submits that the first appellate court failed to properly consider the supporting evidence led by the appellants and erroneously dismissed the application on the ground that the allegations against the advocate were not supported by any evidence.

4. Learned counsel for the appellant submits that the particulars of the reasons stated for condonation of delay are not properly appreciated by the first appellate court. He submits that the application for condonation of delay is rejected on technical grounds by ignoring that the appellants’ substantial rights would be affected if the delay was not condoned. To support his submissions, learned counsel for the appellants relies upon the decision of this court in the case of Arvind Yeshwant Kulkarni and another V/s Vinay Madhukar Kulkarni and Others¹. He submits that this court held that judicial notice can be taken of the facts that normally the suit requires a long time to reach for a hearing and hence, once the advocate is engaged, it is the bounden duty of the advocate to perform duty as an advocate. He therefore submits that this court held that if it is proved that the advocate failed to perform the duties, 1 2019(2) Mh. L.J 210 the absence of the party who had engaged advocate should be taken into consideration for delay condonation.

5. Learned counsel for the appellants submits that even in the present case, defend