SCA/4929/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4929 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ? ========================================================= PATEL AMARSHI PARSHOTTAMBHAI & 1 - Petitioner(s) Versus PATEL AVCHAL TAPUBHAI & 2 - Respondent(s) ========================================================= Appearance : MR NIRAV C THAKKAR for Petitioner(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3,2.2.4 MR NIKUNJ D BALAR for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 13/05/2008 ORAL JUDGMENT : 1. Rule. With the consent of the learned advocates for the parties and in the facts and circumstances of the case, this matter is taken up for final hearing today. 2. By filing this petition under Article 227 SCA/4929/2008 2/4 JUDGMENT of the Constitution of India, the petitioners have prayed to quash and set aside the order dated 31-1-2008 passed by learned Presiding Officer, Fast Track Court No.9, Morbi below Exh.13 in Civil Misc. Appeal No. 37 of 2007 refusing to condone delay of 222 days caused in preferring restoration application. 3. Respondents filed Regular Civil Suit No.9 of 1991 and prayed for the relief of declaration and injunction. The said suit came to be renumbered as Regular Civil Suit No. 289 of 1997. The trial court by judgment dated 27-2-2002 passed decree in favour of the respondents. Therefore the petitioners filed Regular Civil Appeal No. 11 of 2002. The said appeal came to be dismissed for default by order dated 20-9-2006. Therefore, the petitioners filed application for restoration of appeal. But as there was delay of 222 days caused in filing restoration application, Civil Misc. application No.37 of 2007 to condone the delay of 222 days caused in filing of the restoration application. 4. After hearing the parties, learned Presiding Officer, Fast Track Court No.9, Morbi by his order dated 31-1-2008 dismissed the application and refused to condone the delay caused in filing restoration application. Therefore, the petitioners have approached this Court by filing the present petition under Article 227 of SCA/4929/2008 3/4 JUDGMENT Constitution of India. 5. By order dated 19-3-2008 notice was issued for final disposal by making it returnable on 9-4-2008. The Court also directed to deposit sum of Rs.10,000/- before this Court by way of probable costs of the petition. 6. Learned advocate Mr. N.C. Thakkar for the petitioners states that as per the order dated 19-3-2008, amount of Rs.10,000/- has been deposited in the registry. 7. I have heard learned advocate Mr. N.C. Thakkar for the petitioners and learned advocate Mr. D.P. Kinariwala for learned advocate Mr. Nikunj Balar for the respondents at length and in great detail. 8. Having regard to the oral submissions and the averments made in the application for condonation of delay, the petitioners have shown sufficient grounds for their absence in the lower appellate court. It appears that there was no negligence or inaction on the part of the petitioners in preferring the proceedings before the lower appellate court. Therefore, the lower appellate court committed error in refusing to condone delay. Hence, the court is required to exercise power under Article 227 of the Constitution of India, and therefore, this petition is required to be allowed and delay of 222 days caused in preferring restoration application before lower SCA/4929/2008 4/4 JUDGMENT appellate court is required to be condoned. 9. In the result, this petition succeeds and the impugned order dated dated 31-1-2008 passed by learned Presiding Officer, Fast Track Court No.9, Morbi below Exh.13 in Civil Misc. Appeal No. 37 of 2007 is quashed and set aside and delay of 222 days caused in filing restoration application before the lower appellate court is condoned. The lower appellate court is directed to register restoration application and to decide the same as early as possible in accordance with law preferably within two months from the date of receipt of writ of this Court. The registry is directed to send writ of this judgment forthwith. Rule is made absolute. 10. Considering the facts and circumstances of the case, amount of Rs.10,000/- deposited by the petitioners in this Court by way of probable costs of the petition, be paid to the respondents by way of costs of this petition. (Bankim N. Mehta, J.) /JVSatwara/