CRA/115/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 115 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 ? 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 ? ========================================================= ASHOKKUMAR RAJENDRAKUMAR & CO. & 1 - Applicant(s) Versus MUSA AAMAD LAKHA - Opponent(s) ========================================================= Appearance : MR RC KAKKAD for Applicant(s) : 1 - 2. MR ASHISH DAGALI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/07/2008 ORAL JUDGMENT 1. RULE. Mr.Ashish Dagali, learned advocate waives the service of notice of rule on behalf of the respondent. 2. With the consent of the learned advocate appearing on behalf of the respective, parties, the matter is taken up CRA/115/2008 2/6 JUDGMENT for final hearing. 3. By way of this Civil Revision Application the petitioners – original defendants / applicants-appellants have prayed for appropriate order to quash and set aside order dtd.14/5/2008 passed by the learned Principal District Judge, Porbandar in Civil Misc.Application No.28 of 2007 in dismissing the application for condonation of delay of 335 days in preferring appeal against the ex-parte judgement and decree dtd.19/10/2006 delivered by the Additional Civil Judge, Porbandar in Regular Civil Suit No. 524 of 2002. 4. The respondent herein - original plaintiff filed Regular Civil Suit No.524 of 2002 in the court of learned Principal Senior Civil Judge, Porbandar for recovery of Rs.40,750=00 with interest at the rate of 18% per annum which came to be decreed vide judgement and decree dtd.19/10/2006. Being aggrieved by and dissatisfied with the judgement and decree passed by the trial court in Regular Civil Suit No.524 of 2002, the petitioners - original defendants preferred appeal and as there was delay of 335 days days in preferring the appeal, the petitioners preferred Civil Misc. Application No.28 of 2007 requesting to condone the delay caused in CRA/115/2008 3/6 JUDGMENT preferring the appeal and the learned Principal District Jude, Porbandar by his order dtd.14/5/2008 dismissed the said application and refused to condone the delay of 335 days. 5. Mr.R.C. Kakkad, learned advocate appearing on behalf of the petitioners – original defendants has submitted that in the facts and circumstances of the case when the judgement and decree is passed by the trial court ex- parte, the learned appellate court ought to have condoned the delay caused in preferring the appeal at least on imposing some costs. It is submitted that it is not that deliberately the petitioners did not file the appeal within the period of limitation. It is submitted that by not filing the appeal within the period of limitation, the petitioners were not going to be benefited and as soon as the petitioners came to know about the ex-parte judgement and decree on receipt of the notice in execution proceedings, the petitioners applied for certified copies of the ex-parte judgement and decree and obtained after obtaining the certified copies, the appeal came to be preferred and in the meantime, there was a delay, which the learned appellate court ought to have condoned. CRA/115/2008 4/6 JUDGMENT 6. Mr.Ashish Dagali, learned advocate appearing on behalf of the respondent – original plaintiff has submitted that the learned appellate court has found that no sufficient cause was made out for filing the appeal belatedly and therefore, the learned appellate court has rightly refused to condone the delay. It is submitted that as such the original plaintiff is aged about 63 years. Submitting accordingly, it is requested to dismiss the present Civil Revision Application. 7. Heard the learned advocate appearing on behalf of the respective parties. 8. It is the case on behalf of the petitioners that neither the petitioners nor their advocate could remain present before the trial court and therefore, ex-parte judgement and decree came to be passed by the trial court and the petitioners came to know about the same on receipt of the notice in the execution proceedings and thereafter immediately the petitioners obtained certified copies and appeal came to be preferred and therefore, the learned appellate court ought to have condoned the delay. It appears that it is not the case on behalf of the respondent that the petitioners have deliberately and with malafide intention, did not file appeal within the CRA/115/2008 5/6 JUDGMENT period of limitation. Considering the following decisions of the Hon'ble Supreme Court, the appellate court ought to have condoned the delay at least on imposition of some costs and ought to have decided the appeal on merits;- (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, reported in (1996) 3 SCC 132. (v)Sakuntala Devi Jain Vs. Kuntal Kumari and others, reported in AIR 1969 SC 575. 9. For the reasons stated above, the Civil Revision Application succeeds. The impugned order order dtd.14/5/2008 passed by the learned Principal District Judge, Porbandar in Civil Misc. Application No.28 of 2007 in dismissing the application for condonation of delay of 335 days in preferring appeal against the ex-parte judgement and decree dtd.19/10/2006 delivered by the Additional Civil Judge, Porbandar in Regular Civil Suit No. 524 of 2002, is hereby quashed and set aside on condition to deposit an amount of Rs.2500=00 by the petitioners in the appellate court within a period of four weeks from today by way of costs. On such deposit, the appellate court shall permit the respondent - original CRA/115/2008 6/6 JUDGMENT plaintiff to withdraw the said amount. Thereafter, the learned appellate court shall decide and dispose of the appeal on merits. Rule is made absolute accordingly. [M.R. SHAH,J.] rafik