CRA/29/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 29 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? ========================================================= ASOKKUMAR SHANTILAL PATEL - Applicant(s) Versus GUJARAT ELECTRICITY BOARD - Opponent(s) ========================================================= Appearance : MR APURVA R KAPADIA for Applicant(s) : 1, MS LILU K BHAYA for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/07/2008 ORAL JUDGMENT 1. Rule. Ms.Lilu Bhaya, learned Advocate waives service of notice of Rule on behalf of the respondent. CRA/29/2008 2/8 JUDGMENT 2. Present Revision Application is filed by the appellant – original defendant No.2 to quash and set aside the order dated 27.12.2007 passed by the learned Principal District Judge, Gandhinagar below Exh.16 in Civil Misc. Application No.34 of 2007 in dismissing the said application in not condoning the delay of six and half years in preferring Regular Civil Appeal challenging ex-parte judgment and decree dated 01.09.2001 passed by the learned Civil Judge (S.D.), Kalol in Regular Civil Suit No.316 of 1993. 3. It appears that Regular Civil Suit No.319 of 1993 was filed by the respondent – Gujarat Electricity Board in the Court of learned Senior Civil Judge at Mahesana and ex-parte decree came to be passed against the petitioner vide judgment and decree dated 01.09.2001 and the learned trial Court has passed a decree for an amount of Rs.1,14,640/- along with 24% interest per annum. It appears that the respondent – original plaintiff had filed Execution Petition being No.532 of 2005 before the Small Causes Court, Ahmedabad for recovery of an amount of Rs.4,51,423.20 paise. As per the petitioner CRA/29/2008 3/8 JUDGMENT at that time he came to know about the ex-parte decree passed by the learned trial Court and immediately he applied for certified copy of all the necessary documents before the learned Civil Judge (S.D.), Mehsana which were obtained on 03.03.2007 and immediately thereafter appeal came to be preferred and as there was delay, Misc.Civil Application was filed to condone delay, which came to be dismissed by the learned Appellate Court by impugned order. Feeling aggrieved and dissatisfied with the same, the petitioner – original defendant has preferred the present Revision Application. 4. While issuing Notice in the present Revision Application, the learned Single Judge of this Court granted stay of further execution proceedings on condition that the petitioner shall deposit 1/3 rd amount of Rs.4,51,423.20 paise approximately Rs.1,50,000/- before the Registry of this without prejudice to his rights and contentions. It is reported that the petitioner has deposited the said amount with this Court. 5. Mr.Kapadia, learned Advocate appearing on CRA/29/2008 4/8 JUDGMENT behalf of the petitioner has vehemently submitted that the present petitioner has already retired from the partnership firm in the year 1993 and the decree sought to be executed was made on 01.09.2001 and Darkasht came to be filed on 29.09.2005 after a period of four years. It is submitted that the petitioner came to know about the same only when warrant came to be served upon him and immediately, thereafter, appeal came to be preferred. Considering above, the learned Appellate Court ought to have condoned the delay and ought to have given opportunity to the petitioner to submit the case on merits. It is submitted that there was no negligence on the part of the petitioner and/or there was no mala-fide intention on behalf of the petitioner not to prefer appeal within stipulated time and/or prefer the appeal belatedly. He has relied upon following decisions of the Hon'ble Supreme Court: (1)State of Nagaland V/s.Lipok AO and Ors. reported in (2005) 3 SCC 752; (2)N.Balakrishnan V/s. M.Krishnamurthy, reported in (1998) 7 SCC 123; (3)Radha Krishna Rai v/s. Allahabad Bank and Ors. reported in (2000) 9 SCC 733; CRA/29/2008 5/8 JUDGMENT (4)State of Haryana v/s. Chandra Mani and Ors. reported in (1996) 3 SCC 132' (5)Sakuntala Devi Jain v/s. Kuntal Kumari and Ors. reported in AIR 1969 SC 575. 6. Ms.Bhaya, learned Advocate appearing on behalf of the respondent has opposed the present Revision Application by submitting that there was total negligence on the part of the petitioner and there was huge delay of six and half years in preferring the appeal and in the facts and circumstances of the case, the learned Appellate Court has rightly rejected the application for condoning delay, which is not required to be interfered by this Court in exercise of powers under Section 115 of the Code of Civil Procedure and has requested to dismiss the present Revision Application. 7. Heard the learned Advocates appearing on behalf of the respective parties. 8. It is required to be noted that ex-parte decree came to be passed by the learned trial Court for an amount of Rs.1,14,640/- on 01.09.2001 and CRA/29/2008 6/8 JUDGMENT Darkasht / Execution Petition came to be filed on 29.09.2005 after period of almost four years of passing of decree. It appears that the decree passed by the learned trial Court was ex-parte decree and it is the case on behalf of the petitioner that he came to know about the same when summons / warrant in Execution Petition came to be served upon him. It is to be noted that it is not the case on behalf of the respondent that there was deliberate delay on the part of the petitioner in preferring the appeal belatedly. It is the not the case of the petitioner that for oblique reason or motive appeal was not filed within a period of limitation and same is filed belatedly. It is the case on behalf of the petitioner that he has already retired from partnership firm in the year 1993 and still with a view to show his bona- fide the petitioner has already deposited Rs.1,50,000/- with this Court pursuant to the order dated 19.02.2008. As held by the Hon'ble Surpeme Court in catena of decisions normally the proceedings are to be adjudicated on merits and the parties should be given opportunity to submit the case on merits rather than non-suiting the same on technical CRA/29/2008 7/8 JUDGMENT ground of delay, unless it is found that appeal has not been preferred by the petitioner within stipulated time and/or preferred the appeal belatedly with mala-fide intention. It is also further observed by the Hon'ble Supreme Court that length of delay is not material and 'sufficient cause' should be considered liberally. Considering above, it appears that the learned Appellate Court has not exercised discretion judiciously vested in him by not condoning the delay in preferring the appeal. Learned Appellate Court ought to have condoned the delay by imposing certain conditions of depositing decreetal amount to show his bona-fide. Considering above, present Revision Application requires to be allowed and impugned order passed in not condoning the delay requires to be quashed and set aside. 9. For the reasons stated above, the Revision Application succeeds. Impugned order dated 27.12.2007 passed by the learned Principal District Judge, Gandhinagar below Exh.16 in Civil Misc. Application No.34 of 2007 in not condoning the delay in preferring the appeal is hereby quashed and set CRA/29/2008 8/8 JUDGMENT aside. Delay caused in preferring the appeal against the judgment and decree passed by the learned trial Court in Regular Civil Suit No.316 of 1993 is hereby condoned. Now learned Appellate Court to hear the appeal on merits. Registry is directed to transmit an amount of Rs.1,50,000/- deposited by the petitioner pursuant to the order dated 19.02.2008 passed by this Court in present Revision Application to the learned District Court, Gandhinagar immediately. Learned District Judge is directed to invest the said amount in any Fixed Deposit in any Nationalized Bank initially for a period of two years in the name of 'Nazir' so that who ever succeeds, same can be permitted to be withdrawn by them. Registry to transmit the said amount to the learned Appellate Court immediately but not later than six weeks from today. Rule is made absolute accordingly. There shall be no order as to costs. [M.R.Shah,J.] satish