SCA/10458/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10458 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 ========================================================= SUVERA BACHUBHAI DHIRABHAI & 3 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR JN JADEJA for Petitioners. MR VIPUL MISTRY, AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/08/2008 ORAL JUDGMENT 1. Rule. Mr.Vipul Mistry, learned AGP is directed to accept the notice of Rule on behalf of respondents. He waives service of notice of Rule on behalf of respondents. With the consent of learned SCA/10458/2008 2/3 JUDGMENT advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original plaintiffs have prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 27.6.2008 passed by the learned Additional District Judge, 3rd Fast Track Court, Modasa (Sabalpur) passed in Civil Misc. Application No. 43 of 2007 in dismissing the said application and not condoning the delay of 65 days in preferring the Civil Misc. Appeal against the judgment and decree passed by the learned trial court dated 30.3.2007 passed in Regular Civil Suit No.123 of 2003. 3. Considering the fact that there was delay of only 65 days in preferring the appeal and that too when the petitioners claimed to be Adivasis, it appears to this Court that the learned appellate court ought to have condoned the delay by giving an opportunity to the petitioners to submit the case on merits rather than non-suiting them on the technical ground of delay. As held by the Hon'ble Supreme Court as well as this Court in catena of decisions normally “sufficient cause” should be construed liberally so as to advance substantial justice. Considering the above and when nothing is on record that there was delay with a malafide intention, the impugned order passed by the learned SCA/10458/2008 3/3 JUDGMENT appellate court deserves to be quashed and set aside and the delay in preferring the appeal deserves to be condoned. 4. For the reasons stated above, the petition succeeds. The impugned order passed by the learned Additional District Judge, 3rd Fast Track Court, Modasa (Sabalpur) dated 27.6.2008 passed in Civil Misc. Application No.43 of 2007 is hereby quashed and set aside and the delay caused in preferring the appeal against the judgment and decree dated 30.3.2007 passed by the learned 5th Additional Senior Civil Judge, Himatnagar passed in Regular Civil Suit No.123 of 2003 is hereby condoned. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/