Bombay High Court

ASHOK NARAYAN GAIKWAD AND ORSversusSUNIL NARAYAN GAIKWAD AND OTHERS

Disposal: DISPOSED OFF
Bench: SIDDHESHWAR SUNDARRAO THOMBRE

Holding

The appellate court was not justified; the delay is condoned and the order rejecting the condonation is set aside.

Summary

The appellant, original defendant No.2, appealed against the District Judge's order rejecting his application to condone a 244‑day delay in filing an appeal against a 2019 decree. He claimed the delay was due to a heart attack and bypass surgery on 12 June 2019, followed by prolonged hospitalization, and that he only learned of the decree when served a notice in September 2021. The respondent plaintiff argued the appellant’s reasons were false and insufficient, citing a prior decision (Sanjay v. Vinayak) where similar delay was not condoned. The High Court identified a substantial question of law on whether the lower appellate court was justified in rejecting the condonation. Finding the appellant’s medical explanation credible and unchallenged, the Court held that the delay should be condoned, quashed the lower court’s order, and allowed the appeal, subject to a modest cost. The appellate court was also directed to dispose of the appeal within four months and maintain status‑quo pending further applications.

Issues considered

Whether the appellate court was justified in rejecting the appellant’s application for condonation of a 244‑day delay in filing the appeal.

Subjects

condonation of delay
civil appeal
medical grounds
substantial question of law
Civil Procedure Code
judgment communication

Judgment

2026:BHC-AUG:27635

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 6 th 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.
SA 560/22
2

He submits that on 25 th 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 3 rd 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/

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