SCA/2539/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2539 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 ========================================================= ASHOKBHAI CHHOTALAL LEGAL HEIROF DECEASED CHHOTALAL DABGHAR - Petitioner(s) Versus VASANTDAS GORDHANDAS TAILOR - Respondent(s) ========================================================= Appearance : MR PARTHIV B SHAH for Petitioner(s) : 1, MR SUTHAR WITH MR NK MAJMUDAR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL JUDGMENT 1. Rule. learned advocate Mr.N.K.Majmudar, waives service of notice of Rule on behalf of respondent. With the consent of learned advocates SCA/2539/2008 2/4 JUDGMENT 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, petitioner-original applicant- defendant has prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 23.8.2007 passed by the learned Principal District Judge, Vadodara passed in Misc.Application No.263 of 2006 in dismissing the application and not condoning the delay of 193 days in preferring the appeal challenging the judgment and decree passed by the learned 4th Additional Senior Civil Judge, Vadodara dated 31.3.2006 passed in Special Civil Suit No.267 of 1992. 3. Shri Parthiv B.Shah, learned advocate appearing on behalf of the petitioner has submitted that the learned appellate court has committed an error in not condoning the delay 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 even on imposition of some cost 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. He has relied upon the SCA/2539/2008 3/4 JUDGMENT following decisions of the Hon'ble Supreme Court. (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 N.K.Majmudar, 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 SCA/2539/2008 4/4 JUDGMENT parties should be given an opportunity to submit the case on merits rather than non-suiting on the 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 on payment of reasonable cost to the respondent 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 by the learned Principal District Judge, Vadodara passed in Misc.Application No.263 of 2006 dated 23.8.2007 is hereby quashed and set aside and the delay caused in preferring the appeal is hereby condoned on condition that the petitioner shall deposit an amount of Rs.3,500/- with the appellate court within a period of three weeks from today. On such deposit, the learned appellate court shall permit the respondent to withdraw the said amount and shall decide and dispose of the appeal on merits. Rule is made absolute accordingly. ( M.R. SHAH, J. ) syed/