SCA/8238/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8238 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 ? ===================================== RAMBHAI JIVABHAI PARMAR DECEASED THRO HEIRS KADEVIBEN & 4 - Petitioner(s) Versus PUNJABHAI RUDABHAI SAGAR DECEASED THRO HEIRS SAGAR & 5 - Respondent(s) ===================================== Appearance : MRS NISHA M PARIKH for Petitioner(s) : 1 - 5. DS AFF.NOT FILED (R) for Respondent(s) : 1, 5, MR VIMAL M PATEL for Respondent(s) : 2 - 4, 6, NOTICE SERVED for Respondent(s) : 3 - 4. ===================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/10/2008 ORAL JUDGMENT SCA/8238/2008 2/4 JUDGMENT 1. Heard. Ms. Nisha Parikh, learned advocate for the petitioner and Shri Vimal Patel, learned advocate for the respondents. It is reported that respondent No. 1 has expired, however, her heirs are already on record. 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 order passed by the learned Presiding Officer,Fast Track Court, No. 1 Viramgam dated 16.5.2008 passed in Civil Miscellaneous Appeal No. 2 of 2008 in dismissing the said application by not condoning the delay in preferring the Restoration Application to restore Regular Civil Suit No. 7 of 2002. 2. Having heard the learned advocates for the respective parties and considering the averments made in the application below Exh. 1 i.e. Civil Miscellaneous Appeal No. 2 of 2008 and considering the catena of decisions of the Hon'ble Supreme Court as well as this Court taking the view that normally the delay should be condoned and a liberal view should be taken while construing the sufficient cause, it appears that the learned trial Court has committed an error in not condoning the SCA/8238/2008 3/4 JUDGMENT delay in preferring the restoration application. If the delay is condoned, in that case, restoration application is required to be heard on merits and the respondents would be given an ample opportunity to submit the case on merits and oppose the restoration application, however, if the delay is not condoned, the applicant would not be in a position to submit the case on merits. 4. Under the circumstances and for the reasons stated above, the impugned order passed by the learned Presiding Officer,Fast Track Court, No. 1 Viramgam dated 16.5. 2008 passed in Civil Miscellaneous Appeal No. 2 of 2008 is hereby quashed and set aside and delay cause in preferring the Restoration Application to restore the Regular Civil Suit No. 7 of 2002 is hereby condoned on condition that petitioner shall pay the cost, which is quantified at Rs. 2,000/-, which the petitioner shall deposit before the learned Appellate Court within a period of 4 weeks from today. On such deposit, it will be open for respondents herein to withdraw the said amount. On deposit the aforesaid amount, the learned Appellate Court is directed to decide and dispose of the restoration application in accordance with law and on merits. Rule is made absolute accordingly. SCA/8238/2008 4/4 JUDGMENT (M.R.SHAH, J.) kaushik