Mohammed Subhan Mohammed Osman ... vs Raziyabee Abdul Aziz And Another
2017 Latest Caselaw 3063 Bom

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.7529 OF 2017

 1.       Mohammed Subhan s/o Mohammed Osman                 PETITIONERS
          Age - 72 years, Occupation - Agriculture
          R/o Jamal Shah Colony,
          Sillode, Taluka - Sillode,
          District - Aurangabad

 2.       Mohammed Mukhtar s/o Mohammed Subhan,
          Age - 47 years, Occupation - Agriculture
          R/o As above

 3.       Abdul Razzak s/o Mohammed Subhan,
          Age - 35 years, Occupation - Agriculture
          R/o As above

          VERSUS

 1.       Raziyabee w/o Abdul Aziz                        RESPONDENTS
          Age - 68 years, Occupation - Household
          R/o Abdalshah Nagar, Sillode,
          Taluka - Sillode, District - Aurangabad

 2.       Bismillabi w/o Saleem Khan,
          Age - 72 years, Occupation - Household
          R/o Masoba Galli, Sillode,
          Taluka - Sillode
          District - Aurangabad

                              .......

Mr. M. B. W. Khan, Advocate for the petitioners .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 12th JUNE, 2017

ORAL JUDGMENT :

1. Heard learned advocate for the petitioners.

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2. Writ petition has been moved against order dated 8 th

March, 2017 allowing MARJI No.341 of 2013 condoning delay in

filing regular civil appeal against dismissal of suit by respondents

by awarding costs of Rs.800/- to be paid to defendants @

Rs.200/- each.

3. Learned advocate Mr. M. B. W. Khan, vehemently contends

that there is disparity in reasons for condonation of delay. Firstly,

while the delay has been computed is about sixty five days

whereas reference in the application is only to forty six days of

delay. Further that while application refers to a reason that there

was shortage of fund whereas in evidence it has come on record

that it is illness of the plaintiff which caused delay. In the

circumstances, he contends that it cannot be said that

requirement under section 5 of the Limitation Act of there being

sufficient cause for condonation of delay can be said to have

been satisfied. He, therefore urges to intervene in the matter

and set aside the order impugned in present writ petition.

4. Learned appellate judge has considered in the impugned

order the contentions on either side and has referred to

decisions of courts and in his discretion has condoned the delay.

Learned judge has considered that the reasons given by the

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applicants for condonation of delay cannot be considered as

improbable. With reference to certain material it has been

observed that it cannot be presumed that merely having

agricultural land in the name is sufficient to prove that the

applicants are in sound financial position. It has been further

observed that for failure to examine doctor for the period of

sufferance does not affect the case that delay has been also on

account of illness.

5. In view of that discretion has been exercised judiciously

and for the reasons which cannot be said to be not probable and

not sound, I do not deem it expedient to meddle with the order

impugned.

6. Writ petition, as such, stands dismissed.

[SUNIL P. DESHMUKH, J.]

drp/wp7529-17