SHEWANTABAI Vs. PURUSHOTTAM

JUDGEMENT

(1.) Heard finally with the consent of the learned Counsel for the respective parties.

(2.) Admitted on the following substantial question of law : Whether in the facts and circumstances the first Appellate Court erred by refusing to hear first appeal on merits by refusing to condone delay My answer is in the affirmative for the reasons as stated below.

(3.) This appeal arises from order dt. 8.11.2012 passed by the learned Principal District Judge, Wardha whereby the learned first Appellate Judge refused to condone delay on the ground of absence of reasonable explanation for the delay caused to prefer the First Appeal. It appears that present appellants are, in fact, legal heirs of appellant before the first Appellate Court namely Smt. Shewantabai Kashinath Kumbhare, who is referred to in the impugned order and who is no more living. Most of the reasoning given by the first Appellate Judge was about age of applicant Shewantabai as to whether she was aged 67 years or 82 years and also certificate regarding medical treatment of Shewantabai as to whether she was suffering from hypertension, anaemia with general debility due to old age and whether she was advised bed rest for the period concerned and about her presence and attendance in the Court on 6.12.2011 and 31.12.2011. Ultimately, the learned first Appellate Judge, instead of hearing the matter on merits, held that long and inordinate delay of 394 days excluding the period of appeal i.e. of 360 days has occurred. The concluding part that there was no reasonable ground for delay itself is answered by unfortunate death of Shewantabai as this second appeal is now preferred by her legal heirs on account of her death.