SCA/10483/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10483 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 ? ===================================================== AMRUTLAL GAGUBHAI - Petitioner(s) Versus DISTRICT SUPERINTENDENT OF POLICE & 2 - Respondent(s) ===================================================== Appearance : MR PRAVIN GONDALIYA for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. MR. AMIT PATEL ASSIT. GOVERNMENT PLEADER for Respondent(s) : 3, ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/11/2008 ORAL JUDGMENT 1. Rule. Shri Amit Patel, learned AGP, waives SCA/10483/2008 2/7 JUDGMENT service of notice of rule on behalf of the respondent. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned order passed by the learned Civil Judge (S.D.) Rajkot in Civil Miscellaneous Application No. 602 of 2006 in not condoning the delay of 7.5 months (seven and half months)in preferring the application for restoration. 3. It appears that petitioner herein original plaintiff had instituted the suit before the learned trial Court for declaration and permanent injunction challenging his termination. The said suit came to be dismissed for non-prosecution on 14.10.2005 neither the petitioner nor the learned advocate for the petitioner has remained present before the learned trial Court. Thereafter, the petitioner submitted the application for restoration of the said suit, however SCA/10483/2008 3/7 JUDGMENT as there was a delay of 7.5 months (seven and half months) in preferring the said application for restoration, the petitioner submitted the application to condone the delay of 7.5 months (seven and half months) and prayed to condone the delay, which came to be dismissed by the learned trial by impugned order. Being aggrieved and dissatisfied with the impugned order, the petitioner-plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Bavesh Rayani, learned advocate for the petitioner has submitted that learned trial Court has taken a too technical view in not condoning the delay and more particularly, there are no allegations that the Restoration Application was not submitted by the petitioner with a mala-fide intention and deliberately to delay the proceedings. It is submitted that as held by the Hon'ble Supreme Court in catena of decisions, the delay should be construed liberally and even on imposition of certain costs the learned trial Court ought to have condoned the delay in preferring the restoration application, therefore SCA/10483/2008 4/7 JUDGMENT it is requested to allow the present Special Civil Application. 5. Shri Amit Patel, learned AGP, while passing the impugned order has submitted that the petitioner and /or his advocate has remained negligent and it was a suit of 1991 and still in the year 2005 neither the petitioner nor the learned advocate has remained present in 2005, therefore, learned trial Court was justified in dismissing the suit for non-prosecution. It is submitted that no sufficient cause has been made out to condone the delay of 7.5 months (seven and half months), therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocates for the respective parties. It appears that on 14.10.2005 neither the petitioner nor his advocate has remain present before the learned trial Court, suit came to be dismissed for non-prosecution. It is the case on behalf of the petitioner that his advocate did not inform to the petitioner with respect to the SCA/10483/2008 5/7 JUDGMENT dismissal of the aforesaid suit and as soon as he came to know about the same, he has preferred application for restoration and by that time there was a delay of 7.5 months (seven and half months), therefore, considering the above, the learned trial Court ought to have condoned the delay. It is required to be noted that there are no allegations that the petitioner has deliberately not filed the restoration application within the period of limitation and / or with a mala-fide intention, the application was not submitted within the period of limitation. As held by the Hon'ble Supreme Court as well as this Court in catena of decisions normally sufficient cause should be construed liberally and opportunity should be given to the parties to submit their case on merits rather than non-suiting the suit on technical ground. Under the circumstances, it appears to the Court on imposing reasonable cost, the learned trial Court ought to have condoned the delay in preferring the restoration application. Under the circumstances, impugned order deserves to be quashed and set aside and delay in preferring the restoration application deserves to be condoned on the imposing SCA/10483/2008 6/7 JUDGMENT the cost upon the petitioner which is quantified at Rs. 2500/- and petitioner shall deposit the same within a period of two months from today with the trial Court. 7. For the reasons stated above, petition succeeds and the impugned order passed by the learned Civil Judge (S.D.) Rajkot in Civil Miscellaneous Application No. 602 of 2006 in not condoning the delay of 7.5 months (seven and half months)in preferring the application for restoration is hereby quashed and set aside and delay in preferring the restoration application is hereby condoned on condition that the petitioner shall deposit Rs. 2500/- with the trial Court within a period of two months from today and on such deposit the respondent shall be permitted to withdraw the same. On such deposit the delay is to be treated to have been condoned and the learned trial Court to decide and dispose of the restoration application only thereafter. If the amount of Rs. 2500/- as ordered earlier is not deposited by the petitioner within a period of 2 months, the order passed by the learned trial Court impugned in the present petition will SCA/10483/2008 7/7 JUDGMENT stand. Rule is made absolute. Direct service permitted. (M.R.SHAH, J.) kaushik