SCA/4520/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4520 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 ========================================================= DARBAR ALEGBHAI OGHADBHAI - Petitioner(s) Versus KHANT BABU SOMA & 7 - Respondent(s) ========================================================= Appearance : MR RR TRIVEDI for Petitioner(s) : 1,MR BHAVESH P TRIVEDI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3,7.2.4 - 8. MR HARSHAD K PATEL for Respondent(s) : 1, UNSERVED-EXPIRED (N) for Respondent(s) : 4, SERVED BY AFFIX.(N) for Respondent(s) : 5 - 7, 7.2.2,7.2.3 NOTICE NOT RECD BACK for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/08/2008 ORAL JUDGMENT 1. Heard Shri Mukesh Dave, learned advocate appearing for Shri R.R.Trivedi, learned advocate SCA/4520/2007 2/4 JUDGMENT appearing on behalf of the petitioner and Ms.Trusha Mehta, learned advocate appearing for Shri H.K.Patel, learned advocate appearing on behalf of respondent No.1 who is the main contesting party. 2. By way of this petition under Article 227 of the Constitution of India, petitioner – original defendant No.2 appellant has prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 4.12.2006 passed by the learned Presiding Officer, 7th Fast Track Court, Gondal Camp at Jetpur in Civil Misc. Application No.379 of 2006 in not condoning the delay of 23 days in preferring the application for restoration of Civil Misc.Application No.70 of 2000. 3. It appears that the decree came to be passed by the learned trial court by judgment and order dated 16.4.1998 and the appeal came to be preferred challenging the same judgment and order in the year 2000 and there was a delay in preferring the appeal and therefore the petitioner submitted Civil Misc.Application No.70 of 2000 to condone the delay in preferring the appeal. However, the said application came to be dismissed for non-prosecution by order dated 4.7.2006 because the learned advocate appearing on behalf of the applicant could not remain present. That thereafter the applicant submitted an application for restoration of Civil Misc.Application No.70 of 2000 after applying the certified copy of the said order on 10.7.2006. SCA/4520/2007 3/4 JUDGMENT However, there was a delay of 23 days in preferring the said application for restoration of Civil Misc. Application No.70 of 2000 and therefore the petitioner submitted application being Civil Misc.Application No.379 of 2006 requesting to condone the delay of 23 days in preferring the restoration application in Civil Misc.Application No.70 of 2000. Considering the averments in the application and considering the fact that there was a delay of only 23 days in preferring the application for restoration to restore Civil Misc.Application No.70 of 2000 which was also to condone the delay in preferring the appeal, the learned court ought to have condoned the delay by permitting the applicant to submit the case on merits rather than non-suiting the applicant on technical ground of delay. It appears that the learned court has taken too technical view while dismissing the application for condonation of delay. It appears that in the facts and circumstances of the case the learned court ought to have condoned the delay of 23 days in preferring the application for restoration of the application which was also for condonation of delay in preferring the appeal. 4. For the reasons stated above, the petition succeeds. The impugned order passed by the learned Presiding Officer, 7th Fast Track Court, Gondal Camp at Jetpur dated 4.12.2006 passed in Civil Misc. Application No.379 of 2006 in not condoning the delay of 23 days in preferring the application for restoration of Civil Misc.Application No.70 of 2000 SCA/4520/2007 4/4 JUDGMENT is hereby quashed and set aside and the delay of 23 days in preferring the application for restoration of Civil Misc.Application No.70 of 2000 is hereby condoned. 5. With these, present petition is allowed and Rule is made absolute accordingly with no order as to costs. ( M.R. SHAH, J. ) syed/