SCA/14126/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14126 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAGANBHAI POPATBHAI PATEL - Petitioner(s) Versus MUKUNDBHAI HIRALAL DALAL - Respondent(s) ========================================================= Appearance : MR GAJENDRA P BAGHEL for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR AMIT V THAKKAR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original appellant SCA/14126/2008 2/4 JUDGMENT has prayed for appropriate writ, order and/or directions quashing and setting aside the impugned order dtd.17/11/2008 passed by the learned 6th Additional District and Sessions Judge, Surat in delay condonation application No.265 of 2008 in not condoning the delay of 128 days in preferring the appeal challenging the judgement and decree passed by the learned Small Causes Court, Surat in Summary Civil Suit No.466 of 1988. 2. Considering the impugned order it appears that while considering the delay condonation application, the learned appellate court has considered the merits of the case and has held that as the appeal is not maintainable, there is no question of condonation of delay. It prima facie appears that the learned appellate court has committed an error. Whether appeal is maintainable or not is required to be considered only after the delay is condoned and not before that. Under the circumstances, the impugned order passed by the learned appellate court in not condoning the delay deserves to be quashed and set aside on imposing certain cost, which is quantified at Rs.3500 which the petitioner has already SCA/14126/2008 3/4 JUDGMENT deposited pursuant to the order passed by this Court dtd.28/11/2008. 3. Under the circumstances, present Special Civil Application is allowed. The impugned order dtd.17/11/2008 passed by the learned 6th Additional District and Sessions Judge, Surat in delay condonation application No.265 of 2008, deserves to be quashed and set aside and the delay of 128 days caused in preferring the appeal is hereby condoned. It will be open for the respondents to submit appropriate application raising a preliminary objection that the appeal is not maintainable and as and when such an application is made, the same shall be dealt with by the learned trial court in accordance with law and on merits and treat it as a preliminary issue in appeal and take an appropriate decision within a period of two months from the date of receipt of such application without in any way being influenced by the impugned order. The respondent is permitted to withdraw the amount of Rs.3500 deposited by the petitioner pursuant to the order passed by this Court dtd.28/11/2008 and the registry is directed to pay the same by account payee cheque in the name of the respondent and hand over SCA/14126/2008 4/4 JUDGMENT the cheque to the learned advocate appearing on behalf of the respondent. Rule is made absolute accordingly. D.S. Permitted. [M.R. SHAH, J.] rafik