SCA/3462/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3462 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 ========================================================= PARMAR DAHYABHAI MAGANBHAI - Petitioner(s) Versus PRAJAPATI RAMANLAL MAGANBHAI - Respondent(s) ========================================================= Appearance : MS JAYSHREE C BHATT for Petitioner(s) : 1, MR PRAVIN GONDALIYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL JUDGMENT 1. Rule. Mr.Pravin Gondaliya, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of learned advocates appearing for the respective parties, the petition is SCA/3462/2008 2/4 JUDGMENT taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner-original plaintiff-appellant has 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, Modasa passed below Exh.14 in Regular Civil Appeal No.42 of 2007 in not condoning the delay of 66 days in preferring the appeal challenging the judgment and decree passed by the trial court in Special Civil Suit No.7 of 2001. 3. Ms.Jayshree Bhatt, learned advocate appearing on behalf of the petitioner has submitted that the learned appellate court has committed an error in not condoning the delay of 66 days in preferring the appeal and has become too technical in rejecting the application for condonation of delay. It is submitted that normally sufficient cause is to be construed liberally unless there are allegations of malafide that deliberately with a malafide intention the proceedings were not initiated within the period of limitation. It is submitted that the learned appellate court ought to have condoned the delay and given an opportunity to the petitioner to submit the case on merits rather than non-suiting the petitioner on technical ground of delay. She has relied upon the following decisions of the Hon'ble Supreme Court. SCA/3462/2008 3/4 JUDGMENT (i) N.Balakrishnan vs. M.Krishnamurthy reported in (1998) 7 SCC 123. (ii) State of Haryana vs. Chandra Mani and others, reported in (1996) 3 SCC 132. (iii) Sakuntala Devi Jain vs. Kuntal Kumari and others reported in AIR 1969 SC 575. 4. Shri Pravin Gondaliya, learned advocate appearing on behalf of the respondent has submitted that as observed by the learned appellate court the applicant was negligent and therefore the learned appellate court has not committed an error in rejecting the application submitted by the petitioner to condone the delay. Therefore, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocates appearing on behalf of the respective parties. 6. As held by the Hon'ble Supreme Court in catena of decisions inclusive of the decisions referred to hereinabove the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice. It is submitted that unless there are allegations of malafides and/or deliberately not filing the appeal within the period of limitation, the delay should be condoned and the parties should be given an opportunity to submit the case on merits rather than non-suiting on the SCA/3462/2008 4/4 JUDGMENT technical ground of delay. If the delay is not condoned, the applicant would deprived of submitting the case on merits. On the other hand, if the delay is condoned, no prejudice will be caused to the respondent as the the appeal would be heard on merits. Under the circumstances, if the delay is condoned and the appeal is directed to be heard on merits, it will be in the fitness of things. 7. For the reasons stated above, the petition succeeds. The impugned order passed by the learned Additional District Judge, 4th Fast Track Court, Modasa dated 5.1.2008 passed below Exh.14 in Regular Civil Appeal No.42 of 2007 is hereby quashed and set aside and the delay of 66 days caused in preferring the appeal is hereby condoned. The appellate court now to hear the appeal on merits. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. Direct service is permitted. ( M.R. SHAH, J. ) syed/