AO/20/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 20 of 2008 With CIVIL APPLICATION No. 684 of 2008 In APPEAL FROM ORDER No. 20 of 2008 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 ========================================================= DIPAKBHAI YASHWANTBHAI PATEL MANAGING DIRECTOR OF & 1 - Appellant(s) Versus HITESHBHAI NAVINCHANDRA SHAH PROP.OF M/S NAVDEEP ENTERPRISE - Respondent(s) ========================================================= Appearance : MR BHARAT T RAO for Appellants. MR UDAY JOSHI FOR M/S TRIVEDI & GUPTA for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/07/2008 ORAL JUDGMENT AO/20/2008 2/8 JUDGMENT 1. Appeal is Admitted. Mr.Uday Joshi, learned advocate appearing for M/s.Trivedi & Gupta, waives service of notice of admission on behalf of respondent. With the consent of learned advocates appearing on behalf of the respective parties, the appeal from order is taken up for final hearing today. 2. Present appeal from order is filed by the appellants-original defendants challenging the order passed by the learned Principal Senior Civil Judge, Valsad dated 31.12.2007 in dismissing the application for condonation of delay in preferring restoration application and quashing and setting aside the ex- parte decree. 3. Respondent herein-original plaintiff filed Special Civil Suit No.26 of 2006 against the appellants for recovery of Rs.18,12,240/- in the Court of learned Principal Senior Civil Judge, Valsad. It appears that the said Special Civil Suit came up for hearing before the trial court on 15.2.2007 and the trial court by its ex-parte judgment and decree dated 15.2.2007 decreed the said suit. It appears that nobody remained present on AO/20/2008 3/8 JUDGMENT behalf of the defendants and even the plaintiff was also not cross-examined. That thereafter the decree holder – plaintiffs filed Special Darkhast No.12 of 2007 and the notice was issued by the learned Executing Court, and having served with the notice, the defendants came to know about the judgment and decree passed by the trial court and therefore they preferred restoration application for quashing and setting aside the ex-parte judgment and decree by submitting that the learned advocate who was engaged by the defendants had gone to America for a long time and therefore nobody could remain present on behalf of the defendants, and even the defendants trusted the advocate and they were under the impression that the learned advocate who was engaged will take care of the litigation. However, he left India and therefore nobody could remain present and therefore it was requested to set aside the ex-parte judgment and decree. In the said application there was delay of 522 days and therefore the defendants submitted application for condonation of delay which came to be dismissed by the learned Principal Senior Civil Judge, Valsad by his order dated 31.12.2007. Hence the original defendants have preferred the present appeal from order. AO/20/2008 4/8 JUDGMENT 4. Shri B.T.Rao, learned advocate appearing on behalf of the defendants has submitted that the trial court has taken a too technical view while considering the application for condonation of delay. It is submitted that in the facts and circumstances of the case the trial court ought to have condoned the delay and ought to have considered the restoration application on merits. It is submitted that, while considering the delay condone application, the trial court has unnecessary made remarks against the conduct of the defendants. He has relied upon the following decisions of the Hon'ble Supreme Court in support of his prayer to allow the present appeal from order and to condone the delay in preferring restoration application. (i) State of Nagaland vs. Lipok AO and Ors., reported in (2005) 3 SCC 752. (ii) N.Balakrishnan vs. M.Krishnamurthy, reported in (1998) 7 SCC 123. (iii) Radha Krishna Rai vs. Allahabad Bank and others, reported in (2000) 9 SCC 733. (iv) State of Haryana vs. Chandra Mani and others, AO/20/2008 5/8 JUDGMENT reported in (1996) 3 SCC 132. (v) Sakuntala Devi Jain vs. Kuntal Kumari and others, reported in AIR 1969 SC 575. He has further submitted that even some reasonable cost can be imposed while condoning the delay in preferring the restoration application. 5. Appeal from order is opposed by Shri Uday Joshi, learned advocate appearing on behalf of the respondent. It is submitted that looking to the conduct of the defendants in the suit and the suit was not defended at all and there was sheer negligence on the part of the defendants and when the decree came to be passed, and there was delay in preferring restoration application, the learned trial court is justified in not condoning the delay and therefore it is requested to dismiss the appeal from order. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. At the outset it is required to be noted AO/20/2008 6/8 JUDGMENT that the suit came to be filed by the original plaintiff for recovery of Rs.18,12,240/-, it cannot be said to be a small amount. It is the case on behalf of the defendants that they have engaged the lawyer but he had left India and settled in USA for a long time and he did not return to India and they relied upon the advocate and they were under impression that he will take care of the litigation. However, nobody remained present on behalf of the defendants in the suit and therefore there are all chances of succeeding in the restoration application. It is the case on behalf of the defendants that by submitting the restoration application belatedly the defendants were not going to be benefitted. As observed by the Hon'ble Supreme Court in the case of N.Balakrishnan (supra), Radha Krishna Rai (supra), Chandra Mani and others (supra), Sakuntala Devi Jain (supra) and Lipok AO and others (supra), sufficient cause should be construed liberally so as to advance substantial justice. Under the circumstances and considering the aboveof the Hon'ble Supreme Court, on imposing a reasonable cost if the delay is condoned and the restoration application is ordered to be decided and disposed of on merits, the same will meet the ends of justices. AO/20/2008 7/8 JUDGMENT It is also required to be noted that to show the bonafide pursuant to the order passed by this Court in civil application the defendants had already deposited Rs.1.00 lakh (Rupees One Lakh) in the trial court. 8. For the reasons stated above, the appeal from order succeeds. The impugned order passed by the learned Principal Senior Civil Judge, Valsad dated 31.12.2007 passed below Exh.1 in delay condonation application No.36/07 is hereby quashed and set aside and the said delay condonation application is allowed and delay caused in preferring restoration application for quashing and setting aside the ex- parte judgment and decree passed in Special Civil Suit No. 26 of 2006 is hereby quashed and set aside and the trial court is directed to decide and dispose of restoration application for setting aside the ex- parte judgment and decree in accordance with law and on merits. The appellants herein-original defendants are directed to pay cost which is quantified at Rs.4,000/- to be paid/deposited with the trial court within a period of eight weeks, and on such deposit only the delay is to be treated as condoned. If the AO/20/2008 8/8 JUDGMENT cost of Rs.4,000/- is not deposited within eight weeks then the order passed by the trial court in dismissing the delay condonation application will stand. The amount of Rs.1.00 lakh (Rupees One Lakh) deposited by the appellants herein-original defendants pursuant to the order passed by this Court dated 23.1.2008 in Civil Application No.684 of 2008 is ordered to be continued/deposited with the trial court till further orders, and the trial court is directed to invest the said amount of Rs.1.00 lakh (Rupees One lakh) in a fixed deposit with cumulative interest with a Nationalised Bank initially for a period of one year in the name of Nazir of the trial court. 9. With these, Appeal from Order is allowed. Civil Application is disposed of. ( M.R. SHAH, J. ) syed/