SCA/24223/2007 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24223 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= HASMUKHBHAI NARAYANBHAI KHARADI & 1 - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD & 2 - Respondent(s) ========================================================= Appearance : MR JV JAPEE for Petitioner(s) : 1 - 2 MS LILU K BHAYA for Respondent(s) :1- 2, MR BG PATEL for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL JUDGMENT 1. Rule. Ms.Lilu K.Bhaya, learned advocate waives service of notice of Rule on behalf of respondents No.1 and 2 and Shri B.G.Patel, learned advocate waives service of notice of Rule on behalf of SCA/24223/2007 2/3 JUDGMENT respondent No.3. With the consent of learned advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, order or direction, quashing and setting aside the order passed by the learned 3rd Additional Senior Civil Judge, Himmatnagar passed in Civil Misc.Application No.78 of 2005 in dismissing the application submitted by the petitioners for condonation of delay of 166 days in filing the restoration application for restoration of Special Civil Suit No.39 of 2002 which was dismissed for default. 3. It is the cardinal principle of law that normally sufficient cause is to be construed liberally unless there are allegations of malafide that deliberately with a malafide intention the proceedings were not initiated within the period of limitation. It appears from the impugned order that there are no such allegations. By not filing restoration application within the stipulated time the petitioner was not going to be benefitted. Under the circumstances, the learned trial court ought to have condoned the delay and ought to have given an opportunity to the petitioners to submit the case on merits in restoration application and even on imposition of some reasonable cost the delay ought to have been condoned. SCA/24223/2007 3/3 JUDGMENT 4. For the reasons stated above, the petition succeeds. The impugned order passed by the learned 3rd Additional Senior Civil Judge, Himmatnagar passed in Civil Misc.Application No.78 of 2005 in not condoning the delay of 166 days in preferring the restoration application is hereby quashed and set aside and delay of 166 days in preferring the restoration application in Special Civil Suit No.39 of 2002 is hereby condoned on condition that the petitioners shall pay Rs.1,000/- each to the respondents No.1 and 3 either to be paid directly by Demand Draft or to be deposited in the trial court. If the aforesaid amount is deposited in the trial court, the trial court shall permit the respondents No.1 and 3 herein to withdraw the said amount of Rs.1,000/- each. On such deposit only the restoration application is to be taken up for hearing. Rule is made absolute accordingly. ( M.R. SHAH, J. ) syed/