SCA/12999/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12999 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 ========================================================= VANKAR HARIBHAI MAGANBHAI & 1 - Petitioner(s) Versus PATEL PURVIKKUMAR AMRUTLAL & 2 - Respondent(s) ========================================================= Appearance : MRS SUMAN KHARE for Petitioner(s) : 1 - 2. MR PR NANAVATI for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/11/2008 ORAL JUDGMENT 1. Heard Shri Akshar Khare, learned advocate for Mrs.Suman Khare, learned advocate appearing on behalf of the petitioners and Shri P.R.Nanavati, learned advocate appearing on behalf of the SCA/12999/2008 2/5 JUDGMENT respondents. 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original appellants have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order passed by the learned Additional District Judge, 4th Fast Track Court, Mehsana dated 5.7.2008 passed in Civil Misc. Application No.13 of 2008 in dismissing the same and not condoning the delay of approximately three months in preferring the appeal challenging the order passed by the trial court passed below Exh.5. 3. The learned trial court passed the order below Exh.5 in Regular Civil Suit No.244 of 2007 on 3.11.2007 and it is the case on behalf of the petitioners that, as soon as they came to know about the same, they appeared before the trial court on 21.1.2008 and applied for certified copy and the order below Exh.5 which they received on 13.2.2008 and immediately thereafter the appeal came to be preferred before the learned appellate court and therefore the delay has been caused in preferring the appeal and therefore they submitted the application to condone the delay. 4. Shri Khare, learned advocate appearing on behalf of the petitioners has submitted that, in the facts and circumstances of the case, the learned appellate court ought to have condoned the delay and ought to have given an opportunity to the petitioners/appellants SCA/12999/2008 3/5 JUDGMENT to submit the case on merits rather than non-suiting the petitioners on the technical ground of delay. It is submitted by Shri Khare, learned advocate appearing on behalf of the petitioners that normally sufficient cause should be considered liberally so as to advance substantial justice. It is further submitted that, even looking to the length of delay, the learned appellate court ought to have condoned the delay and ought to have given an opportunity to the appellants to submit the case on merits. Therefore it is requested to allow the present petition. 5. Petition is opposed by Shri P.R.Nanavati, learned advocate appearing on behalf of the respondents. It is submitted that as observed by the learned appellate court the petitioners-original appellants even did not accept the summons of the court and the bailiff submitted the report accordingly and thereafter the learned trial court proceeded with the hearing of Exh.5 ex-parte and therefore the petitioners have to thank themselves and therefore considering the aforesaid conduct on the part of the appellants, the learned appellate court has rightly dismissed the application and has rightly not condoned the delay in preferring the appeal. Therefore it is requested to dismiss the present petition. 6. At the outset it is required to be noted that the impugned order has been passed by the learned appellate court in not condoning the delay in preferring the appeal challenging the order SCA/12999/2008 4/5 JUDGMENT passed below Exh.5 passed by the learned trial court. As held by the Hon'ble Supreme Court and this Court in catena of decisions normally delay is to be condoned and a litigant should be given an opportunity to submit the case on merits rather than non-suiting him on technical ground of delay. It is also further held by the Hon'ble Supreme Court in catena of decisions that sufficient cause should be construed liberally so as to advance substantial justice. It appears from the impugned order that the learned appellate court has not properly exercised the jurisdiction vested in him by not condoning the delay in preferring the appeal. The learned appellate court ought to have appreciated that if the delay is condoned in that case appeal be heard on merits and therefore no prejudice would have been caused to the otherside. Under the circumstances, the impugned order passed by the learned appellate court deserves to be quashed and set aside and the delay in preferring the appeal is required to be condoned and an opportunity is given to the petitioners to submit the case on merits rather than non-suiting him on technical ground of delay. 7. Under the circumstances and for the reasons stated above, the petition succeeds. The impugned order passed by the learned Additional District Judge & Presiding Officer, 4th Fast Track Court, Mehsana dated 5.7.2008 passed in Civil Misc. Application No.13 of 2008 in not condoning the delay in preferring the civil misc.appeal challenging the order passed by the learned trial court passed below SCA/12999/2008 5/5 JUDGMENT Exh.5 passed in Regular Civil Suit No.244 of 2007 is hereby condoned. Now the learned appellate court to decide and dispose of the appeal in accordance with law. 8. 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/