SHANKLAR BALKRISHNA TORASKAR Vs. PANDURANG SITARAM KHOT

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 4.5.1996 passed by the 2nd Addl. District Judge, Sawantwadi in Civil Misc. Application No.40 of 1995. That application was filed by the petitioner seeking condonation of delay in filing the appeal, challenging the judgment and decree dated 16.8.1995 passed in the Reg.Civil Suit No.10/1986 by the learned Civil Judge, J.D. Kankavali. The decree was passed ex-parte. The decree is for specific performance of a contract for sale of immovable property. It is undisputed position that there was a delay of 34 days in filing the appeal before the appellate Court, namely, the 2nd Addl. District Judge, Sindhudurg at Sawantwadi. In the application for condonation of delay, it was the case of petitioner that he resides at Bombay and the suit was pending before the Civil Judge, J.D., Kankavali and he had engaged Shri Desai, Advocate to represent him in the suit. He averred that Shri Desai Advocate was suffering from paralysis and as a result of which he could not attend the suit and he also could not inform the petitioner about further progress of the suit. In the result, the petitioner was un-represented before the Civil Judge, J.D. and the suit came to be decreed ex-parte. He submitted that after he came to know that a decree has been passed against him, he immediately approached the court by filing the appeal and applied for condonation of delay in filing the appeal. It was further averred that the petitioner is also an old man. His age in the application for condonation of delay is shown as 69 years and that he is also not keeping good health. The application was opposed by the decree holder. That application has been dismissed by the 2nd Addl. District Judge, Sawantwadi, who has held that the petitioner has not been able to give satisfactory explanation for condoning delay involved in filing the appeal. It is this order of the learned Addl. District Judge, which is challenged in this petition.

(2.) I have heard the learned counsels for both the sides. The learned counsel appearing for the respondent, contended that there is no explanation worth the name coming forward from the petitioner for condonation of delay. He urged that there was no material placed before the court to show that Advocate Desai was suffering from paralysis. In his application for condonation of delay, he also submitted that in view of the dismissal of Reg. Civil Suit No.42 of 1981, there is no merit in the appeal.

(3.) IN the result, therefore, the petition succeeds and is allowed. The order dated 4th of May 1996 passed by the second Addl. District Judge, Sawantwadi in Civil Misc. Application No.40 of 1995 is hereby set aside. The delay in filing the appeal against the judgment and decree dated 16.8.95 passed by the learned Civil Judge, J.D.Kankavali in Reg.Civil Suit No.10/1986, is hereby condoned. The appellate court is directed to hear and decide the appeal on merits. Thus the rules is made absolute accordingly.