SA 560/22 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 86 SECOND APPEAL NO. 560 OF 2022 WITH CIVIL APPLICATION NO. 5314 OF 2026 IN SA/560/2022 WITH CIVIL APPLICATION NO. 11744 OF 2022 IN SA/560/2022 WITH CIVIL APPLICATION NO. 13799 OF 2022 IN SA/560/2022 SUNIL NARAYAN GAIKWAD VERSUS ASHOK NARAYAN GAIKWAD AND ORS ... Advocate for Appellant : Mr. D.G. Nagode, Ms. A.S.Jadhav Advocate for Respondent 1 : Ms. M.A. Kulkarni ... CORAM : SIDDHESHWAR S. THOMBRE, J. Dated : July 07, 2026 PER COURT :- 1. Heard the learned counsel for respective parties. 2. By this appeal, the appellant challenges the judgment and order dated 21.4.2022 passed by the learned District Judge-6, Ahmednagar in M.C.A. No. 145/2021 filed for condoning the delay of 242 days, thereby rejecting the delay condonation application and confirming the judgment and order dated 14.6.2019 passed by the learned 6th Jt. Civil Judge, S.D., Ahmednagar in R.C.S. No. 736/2012. The appellant is the original defendant No. 2. Respondent No. 1 is the original plaintiff and respondent Nos. 2 and 3 are the original defendant Nos. 1 and 3. 3. Mr. D.G. Nagode, learned counsel for the appellant/original defendant No. 2 submits that in the application before the appellate court, he stated that the judgment and order dated 14.6.2019 of learned Civil Judge, Senior Division, Ahmednagar was not communicated by his counsel. 2026:BHC-AUG:27635 SA 560/22 2 He submits that on 25th September 2021 when he received notice issued by the Court Commissioner for site visit, he got knowledge about the same and thereafter he appeared before the executing court on 3rd October 2021. Thereafter he obtained certified copies and filed the appeal. He submits that in an application, he has stated that the applicant was hospitalized as indoor patient in Anand Rushiji Hospital as he suffered heart attack and on 12.6.2019 he undergone major heart by-pass surgery and his treatment was going on till 13.10.2020. He submits that the delay which was caused is not deliberate or intentional, but the learned appellate court failed to consider this aspect and rejected the application filed for delay condonation. 4. Per contra, Mrs. M.A. Kulkarni, learned counsel for respondent No. 1/original plaintiff submits that the application filed by the appellant was based on the false grounds. She submits that when the impugned order was passed the advocate for the appellant was present and no specific specific dates were given about how many days he was hospitalized. She submits that even if his contentions are accepted as it is that he was operated for heart attack surgery, this period is not more than three months. She submits that the reasons given by the appellant are imaginary one and therefore on the basis of false ground, the application for delay condonation was filed and the learned appellate court has rightly rejected the same. In support of her contention, she relied upon the order passed by the co-ordinate bench of this Court in Second Appeal No. 263/2018 decided on 31.7.2023 in the case of Sanjay Vs. Vinayak and contended that this Court in similar set of facts has considered that the delay was not properly explained and maintained the order passed by the SA 560/22 3 appellate court. She therefore prays for dismissal of the second appeal by holding that no substantial question of law is involved in the matter. 5. Having heard the learned counsel for respective parties and having gone through the record, impugned orders of the courts below and the application for condonation of delay, I find that following substantial question of law is involved in the matter. (1) Whether the appellate court is justified in rejecting the application for condonation of delay filed by appellant ? 6. In view of the above substantial question of law, it needs to be considered whether there was sufficient ground raised by the appellant before the appellate court to condone the delay of 244 days caused in filing the appeal. There is no dispute about the fact that the judgment and decree was passed on 14.6.2019. In the application, the applicant has averred that he suffered heart attack and had undergone by-pass surgery on 12.6.2019 i.e. prior to two days of the judgment and decree of the trial court. Even this ground was not controverted by the learned counsel for the respondents/defendants by stating that he was not operated and whatever grounds the appellant has stated in the application were not proper. Therefore, the fact is that he was operated on 12.6.2019 and he was under treatment continuously. Even it is the contention of the appellant that he got knowledge about the same when he received the notice of the court commissioner on 25.9.2021 and he came to know that Regular Darkhast No. 135/2019 was filed by the respondent herein. Thereafter, after obtaining certified copies, he filed appeal and the delay was caused. In view of the above reasons, I hold that the appellant has made out case for condonation of delay in filing the appeal before the SA 560/22 4 appellate court. Hence, the impugned judgment and order passed by learned appellate court is quashed and set aside. Delay of 244 days caused in filing the appeal is condoned, subject to payment of cost of Rs.10,000/- within two weeks and the same shall be transmitted to the Government Cancer Hospital, Aurangabad. The appeal is allowed accordingly. 7. Both the learned counsel for the parties submits that the appellate court be directed to decide the appeal within stipulated period. In view of the above, the appellate court is directed to decide the appeal within a period of four months from today. 8. The learned counsel for the appellant submits that the date 15.7.2026 is given for demolition of the building. In view of the above, the parties to maintain status-quo for the period of three weeks from today. Thereafter, appellant is at liberty to file application for seeking necessary reliefs. Parties to appear before the appellate court on 21.7.2026. 9. All the civil applications stand disposed of. ( SIDDHESHWAR S. THOMBRE, J. ) ssc/