CRA/5120/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 51 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= RANJANBEN W/O ANILKUMAR PATADIYA - Applicant(s) Versus PATADIYA ANILKUMAR BHIKHABHAI - Opponent(s) ========================================================= Appearance : MR HARSHIT S TOLIA for Applicant(s) : 1,MR PARTH S TOLIA for Applicant(s) : 1, MR NISHITH P THAKKAR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 25/09/2008 ORAL JUDGMENT 1. RULE. Learned advocate Mr NP Thakkar waives service of Rule on behalf of the respondents. CRA/5120/2008 2/4 JUDGMENT At the joint request of the learned advocates for the parties, this revision application is taken up for final hearing today. 2. Applicant herein has challenged an order dated 04.02.2008 passed by the learned Judge of Fast Track Court, Amreli in Misc. Civil Application No. 59 of 2007. By the said order, the learned Judge was pleased to dismiss the delay condonation application filed by the applicant herein. 3. Respondent herein – the husband had filed a divorce petition against the present applicant. The competent Court granted decree of divorce in favour of the respondent herein by a judgment and decree dated 05.12.2006. The applicant herein preferred appeal against the said judgment and decree of divorce contending, inter alia, that the same was ex-parte and there was no due service of summons on her. For the purpose of present proceedings, it is not necessary for me to decide this issue. Suffice it to note that in the impugned order, the learned Judge found that sufficient reasons for condoning the delay in preferring such an appeal was not made out. The learned Judge observed that even after communication of the judgment and decree for 20 days, the applicant took no steps for filing appropriate proceedings. The learned Judge noted the observations made by the CRA/5120/2008 3/4 JUDGMENT Trial Court that the applicant herein has refused to accept the notice from the bailiff. Upon which, it was necessary to paste the notice on the conspicuous part of the house. On these grounds as well as on the ground that the husband has already remarried, in the meantime, the learned Judge has refused to condone the delay. 4. I find that the learned Judge committed legal error in not condoning the delay. At the outset, it was the case of the applicant that there was no due service on her of the summons of the marriage petition. In any case upon coming to know of the judgment and decree, admittedly, she had approached the Appellate Court within about 20 days. Such period could not have been considered gross delay and the condonation application should have been granted. What would be the effect of such condonation of ultimate delay on account of remarriage by the husband need not be decided in this revision application. Further, as noticed earlier, the learned Judge relied on the observations made in the impugned judgment and decree to believe that the applicant had avoided service of summons. This was not the subject matter of delay condonation application and would have to be gone into in the appeal itself. 5. On all these grounds, I find that the delay CRA/5120/2008 4/4 JUDGMENT condonation application of the applicant was erroneously turned down. The impugned order dated 04.02.2008 is set aside. Delay is condoned. The appeal of the present applicant shall be heard on merits unmindful of the observations made in this order. 6. This application is disposed accordingly. Rule is made absolute accordingly. (AKIL KURESHI, J.) mrpandya*