Bombay High Court
DEVKUMAR SHANKAR SALVEversusLATABAI RAMESH THOMBARE
- Decided
- Disposal
- Disposed Off
Holding
The High Court held that the appellant’s genuine financial hardship justified condonation of the delay, and the lower courts erred by applying a hyper‑technical approach.
Summary
The appellant, Devkumar Shankar Salve, appealed under Section 100 of the CPC against the dismissal of his application for condonation of delay in filing a substantive appeal against a 2017 decree. The District Judge had dismissed the application, and the First Appellate Court rejected it on technical grounds, including an erroneous calculation of the delay period. The appellant, filing the condonation application personally without a lawyer, cited lack of funds for stamp fees and counsel as reasons for the delay of 8 months and 25 days, and also referenced a medical certificate for his mother. The High Court observed that despite procedural deficiencies, the appellant’s justification of financial hardship was genuine, especially as he later obtained legal aid. Consequently, the Court set aside the lower court’s order, condoned the delay without imposing costs, and directed the First Appellate Court to register and decide the appeal on its merits.
Issues considered
- Whether the reasons stated for condonation of delay should be rejected on hyper‑technical grounds and by recalculating the period of delay as pleaded by the appellant.
- Whether the first appellate court erred in treating the pendency of the application for non‑removal of office objection as a ground to refuse condonation of delay.
- Whether the first appellate court’s rejection of the condonation application amounted to a hyper‑technical view contrary to the liberal approach prescribed for such applications.
Subjects
- condonation of delay
- Civil Procedure Code
- Section 100 CPC
- legal aid
- costs
- hyper‑technical approach
- liberal judicial discretion
Judgment
Sonali Mane 2-SA-584-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 584 OF 2025
Devkumar Shankar Salve … Appellant
Versus
Latabai Ramesh Thombare and Ors. … Respondents
Mr. Harshvardhan G. Khambete for Appellant.
Mr. Vinayak R. Kumbhar i/b Ashwini N. Bandiwadekar for Respondent
No.1.
CORAM : SANDEEP V. MARNE, J.
DATE : 18 SEPTEMBER 2026.
P.C. :
1) This is an appeal filed under Section 100 of the Code of Civil
Procedure, 1908 challenging Order dated 6 January 2025 passed by the
District Judge-1, Yeola dismissing the Civil Miscellaneous Application
No. 28 of 2023 filed seeking condonation of delay in filing a substantive
appeal against Trial Court’s decree dated 12 January 2017.
2) By Order dated 16 April 2025, this Court has already framed
substantial questions of law as under:
I) Whether the reasons stated for condonation of delay in the
application is disbelieved by the first appellate court on hyper technical
ground and by recalculating number of days delay as pleaded by the
MANE appellant?
SONALI
DILIP
Digitally signed by
MANE SONALI DILIP
Date: 2026.09.22
11:44:21 +0530
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II) Whether the first appellate court erred in not correctly appreciating
the pendency of the application for non removal of office objection by
treating it as ground for refusal to condone delay?
III) Whether the reasons recorded by the first appellate court in
rejecting the application for condonation of delay would amount to
taking hyper technical view by ignoring the well settled legal principles
of having liberal approach in deciding application for condonation of
delay?
3) I have heard Mr. Khambete, the learned counsel appearing
through legal aid for the Appellant and Mr. Kumbhar, the learned
counsel appearing for Respondent No.1. I have considered the
submissions canvassed by the learned counsel appearing for parties.
4) So far as the first two questions framed by this Court are
concerned, in my view, it is not really necessary to delve deeper into the
manner of conduct of enquiry by the Appellate Court with regard to the
events that have transpired after lodging of Civil Miscellaneous
Application No. 28 of 2023. The issue ultimately boils down to the
delay of 8 months and 25 days in filing the substantive appeal. It
appears that the application for condonation of delay was filed by the
Appellant in person and he pleaded following justification in the
application:
३) अपेलंट यांना अपिपल दाखल करणेस अंदाजे ५ मपि ने उशि र झाला आ े. सदरील उशि र
अपेलंट यांची आर्थि क परिरस्थि" ती खराब असले कारणाने अपिपल दाखल करण्यास लागणारा
"टॅम्प खच) , वकीलाची नेमणुक करण्याकामी लागणारी फी उपलब्ध नसलेने पिवलंब झालेला
आ े.
(४) सदरील उशि र ा पिकरकोळ "वरुपाचा व योग्य कारणामुळे झालेला आ .े
(५) सदरील अज) मंजुर ोणे कायदेशि र गरजेचे आ े. त्यामुळे मे. कोटा)समक्ष सत्य येणार आ े.
न्यायदानास मदतच ोणार आ .े
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(६) जर सदरील अज) मंजुर न झालेस अपेलंट यांचेवर अन्याय ोऊन त्यांचे कायदेशि र
अधिधकाराचे नन ोणार आ े. त्याचे पै ात न भरुन येणारे नुकसान ोणार आ े.
(७) सदरील अज) मंजुर केलेने सा.वाले यांचे कोणते ी नुकसान ोणार ना ी. न्यायदानास
मदत ोणार आ े.
5) True it is that the application does not contain proper
averments justifying delay, and that the application also erroneously
computes the period of delay. However, it must be borne in mind that
the application was drafted and filed personally by the Appellant, who
was not assisted by services of a professional Advocate. However, the
Appellant did plead the reason of non-availability of funds for purchase
of stamp and appointment of an Advocate. This justification pleaded by
the Appellant does not appear to be altogether false, in view of the fact
that the present appeal is filed and prosecuted by an Advocate provided
to the Appellant by legal aid. Therefore, the justification of non-
availability of funds for payment of fees to the Advocate raised in the
application for condonation of delay, appears to be genuine.
6) In my view, therefore, instead of going into too many
technicalities about the conduct of the Appellant, the First Appellate
Court ought to have concentrated on the correctness of justification
pleaded for condonation of delay. It appears that, during the course of
hearing of the application, the Appellant relied on Certificate dated 9
September 2017 in respect of his mother, who was Applicant No.2
before the First Appellate Court certifying that she was unwell from 2
January 2017 to 9 September 2017. Though this reason again is not
specifically pleaded in the application for condonation of delay, it
appears that the certificate is procured after filing of the application.
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Though, I am not fully convinced about sickness of Applicant No.2, who
is Respondent No.10 herein, the reason of non-availability of funds for
filing of the appeal appears to be genuine in the unique facts of the
present case.
7) All three questions are accordingly answered in favour of the
Appellant. The First Appellate Court has erred in not condoning the
delay in filing the substantive appeal. Ordinarily, this Court would have
awarded some costs to the original Plaintiff while condoning the delay.
However, in the unique facts of the present case, it appears that the
Appellant does not have sufficient funds even to engage services of an
Advocate. Therefore, he may not be able to comply with a direction for
payment of costs. In view of these special circumstances, I deem it
appropriate to condone the delay in filing the appeal without imposing
any condition for payment of costs.
8) Appeal accordingly succeeds and I proceed to pass to the
following Order:
i) Order dated 6 January 2025 passed by the District
Judge-1, Yeola, in Civil Miscellaneous Application No. 28 of
2023 is set aside.
ii) The delay in filing the appeal is condoned.
iii) The First Appellate Court shall proceed to register
the appeal and decide the same on its own merits, without
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being influenced by any of the observations made in the
order.
9) The Second Appeal is allowed in above terms. There shall be
no order as to costs.
10) Considering the fact that the decree is passed in favour of the
Plaintiff on 12 January 2017, the First Appellate Court shall accord due
priority for decision of the appeal and shall make an endevor to decide
the same as expeditiously as possible, preferably within a period of two
years.
[SANDEEP V. MARNE, J.]
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