SCA/19432/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 19432 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 ? 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? ========================================================= PASCHIM GUJARAT VIJ COMPANY LIMITED - Petitioner(s) Versus AUM BUSINESS HOUSE PVT.LTD. & 3 - Respondent(s) ========================================================= Appearance : MR PREMAL R JOSHI for Petitioner(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, SERVED BY AFFIX.(N) for Respondent(s) : 1, MR HEMANG PARIKH, ASST. GOVERNMENT PLEADER for Respondent(s) : 2 - 3. NOTICE SERVED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/07/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – Paschim SCA/19432/2007 2/4 JUDGMENT Gujarat Vij Company Limited – original respondent No.2 has prayed for an appropriate Writ, direction and/or order quashing and setting aside the order dated 07.07.2007 passed by the learned 2nd Joint District Judge, Bhavnagar below Exh.1 and Exh.12 in Misc.Civil Application No.93 of 2007 (Annexure-A) to the petition, by which the learned Trial Court has condoned delay of seven months and ten days in submitting the application for restoration and further passing an order of restoring Misc.Civil Appeal No.52 of 2002 to file. 2. It appears that the respondents herein – original appellants had preferred Misc.Civil Appeal No.52 of 2002 before the District Court, Bhavnagar, which came to be dismissed for non-prosecution as the learned Advocate appearing on behalf of the respondents – original appellants did not remain present on 06.07.2006 the day on which the appeal came up for hearing. The respondents herein – appellants submitted application for restoration and there was a delay of seven months and ten days in preferring the application for restoration. The SCA/19432/2007 3/4 JUDGMENT respondents herein – original appellants submitted application Exh.12 requesting to condone the delay in preferring the restoration application and the learned 2nd Additional District Judge, Bhavnagar by order dated 07.07.2007 allowed application Exh.12 by condoning the delay of seven months and ten days in preferring the restoration application considering the fact that for the fault of the learned Advocate in not remaining present, appellant should not suffer and restored Misc. Civil Appeal No.52 of 2002 to file. Being aggrieved and dissatisfied with the aforesaid order, the petitioner – original respondent No.2 has preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Having heard the learned Advocates appearing on behalf of the respective parties and considering the fact that the learned Advocate appearing on behalf of the respondents herein – respective appellants did not remain present at the time when the appeal was called out and considering the fact that the appellants relied upon their learned SCA/19432/2007 4/4 JUDGMENT Advocate and appeal came to be dismissed for non- prosecution on the aforesaid ground and when subsequently on restoration application being filed, same is allowed by condoning the delay, it cannot be said that the learned Appellate Court has committed any error. To do complete and substantial justice and to consider the appeal submitted by the respective appellants on merits, when the learned Appellate Court has allowed the restoration application by condoning the delay, same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. It appears that the learned Appellate Court has exercised discretion judiciously. Under the circumstances, present Special Civil Application is required to be dismissed and accordingly it is dismissed. Notice discharged. [M.R.Shah,J.] satish