SCA/8742/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8742 of 2006 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 ? ===================================================== RAJUBHAI KANABHAI VAJA - Petitioner(s) Versus BHARTIBEN LALJIBHAI ATARA & 2 - Respondent(s) ===================================================== Appearance : MR PRAVIN GONDALIYA for Petitioner(s) : 1, MR YOGESH S LAKHANI for Respondent(s) : 1 - 3. ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/11/2008 ORAL JUDGMENT Leave to amend prayer clause. SCA/8742/2006 2/6 JUDGMENT 1. Rule. Shri Raxit Dholakiya, learned advocate waives service of notice of rule on behalf of the respondent Nos. 1 to 3, who are main contesting party. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner original appellant/applicant has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order passed by the learned 3rd Additional District Judge, Veraval dated 2.2.2006 passed in Civil Misc. Application No. 21 of 2005, by which the learned Appellate Court has not condoned the delay of 154 days in preferring the appeal against the order passed by the learned trial Court mainly on the ground that all the parties to the suit are not party to the appeal as well as the application for condonation of delay. 3. Shri Pravin Gondaliya, learned advocate for the petitioner has submitted that the main application has been dismissed by the learned SCA/8742/2006 3/6 JUDGMENT Appellate Court on technical ground and as such learned Appellate Court ought to have given opportunity to the petitioner to amend the cause title of the application for condonation of delay and appeal and ought to have considered the application for condonation of delay accordingly. Shri Gondaliya, learned advocate for the petitioner has submitted that if such an opportunity is given to the petitioner and petitioner is permitted to amend the cause title of the aforesaid Civil Mis. Application as well as the appeal on imposition of reasonable cost, it will meets the end of justice. 4. Shri Raxit Dholakiya, learned advocate for the respondent Nos. 1 to 3 has submitted that in the facts and circumstances of the case, the learned Appellate Court has not committed any error, which calls for interference of this Court in exercise the powers under Article 227 of the Constitution of India. Therefore, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocates appearing for the SCA/8742/2006 4/6 JUDGMENT respective parties. Considering the impugned order passed by the learned Appellate Court passed in aforesaid Civil Misc. Application, which was submitted by the petitioner to condone the delay of 154 days in preferring the appeal, it appears that the learned Appellate Court has dismissed the said application mainly on the ground that the petitioner has not joined all the parties to the suit in the application for condonation of delay as well as appeal. It appears to this Court that the learned Appellate Court has passed the impugned order taking too technical view and ought to have given opportunity to the petitioner to amend the cause title by joining all the parties to the suit in the application for condonation of delay and the appeal and ought to have considered the application for condonation of delay on merits. This Court is of the opinion that if the petitioner is permitted to amend the cause title of the application for condonation delay as well as the appeal and the matter is remanded and the learned Appellate Court is directed to decide SCA/8742/2006 5/6 JUDGMENT and dispose of the said application for condonation of delay on merits on imposition of reasonable cost, the same will be ends of justice. 6. Under the circumstances and for the reasons stated above, the impugned order passed by the learned 3rd Additional District Judge, Veraval dated 2.2.2006 passed in Civil Misc. Application No. 21 of 2005 is hereby quashed and set aside and the petitioner is permitted to amend the cause title of application for condonation of delay as well as appeal by joining all the parties to the suit in the said proceedings and thereafter the learned Appellate Court to decide and dispose of the application for condonation of delay in accordance with law and on merits without in any way being influenced by the impugned order. Petitioner is directed to pay the cost to the respondent Nos. 1 to 3 which is quantified at Rs. 4,000/- to be deposited with the learned Appellate Court within a period of 4 months from today and only on such payment/ deposit the learned Appellate Court to decide SCA/8742/2006 6/6 JUDGMENT and dispose of the application for condonation of delay. On such deposit of Rs. 4000/-, the respondent Nos. 1 to 3 are permitted to withdraw the same. Rule is made absolute. (M.R.SHAH,J.) kaushik