SCA/11681/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11681 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 ? ========================================================= STATE OF GUJARAT & 1 - Petitioner(s) Versus DAYABEN DIPAKKUMAR PRAJAPATI - Respondent(s) ========================================================= Appearance : MR. AMIT PATEL ASSIT. GOVERNMENT PLEADER for Petitioner(s) : 1 - 2. MR KISHOR M PAUL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/10/2008 ORAL JUDGMENT 1. Heard. Shri Amit Patel, learned AGP for the petitioners and Shri Kishor Paul, learned advocate for the respondent. 2. By way of this petition under Article 227 of the SCA/11681/2008 2/6 JUDGMENT Constitution of India, the petitioners original defendants have prayed for an appropriate writ, direction and order quashing and setting the judgment and order passed by the learned Civil Judge, Anjar- Kutch dated 11.5.2007 in Civil Suit No.29 of 2004 as well as the proceedings initiated by the present respondent being Civil Darkhast Application No. 13 of 2004. It is also further prayed for to quash and set aside the order passed by the learned Joint District Judge (Fast Track Court), Anjar in Civil Miscellaneous Application No. 485 of 2007. 3. Shri Amit Patel, learned AGP has submitted that in view of the fact that the appeal is preferred against the judgment and decree dated 11.5.2007 passed in Civil Suit No. 29 of 2004, the said decree cannot be challenged by way of this petition and, therefore, he does not press for the said relief. He has submitted that the present petition be restricted to challenge the order passed by the learned Appellate Court passed in Civil Miscellaneous Application No. 485 of 2007, by which the learned trial Court has not condoned the delay of 150 days in SCA/11681/2008 3/6 JUDGMENT preferring the appeal. 4. It appears that being aggrieved and dissatisfied with the judgment and decree dated 11.5.2007 passed in Regular Civil Suit No. 29 of 2004 passed by the learned Civil Judge (S.D.), Anjar, the petitioner had preferred the appeal before the learned Appellate Court. However, as there was a delay of 150 days in preferring the appeal, the petitioner submitted Civil Miscellaneous Application No. 485 of 2007 to condone the delay in preferring the appeal and the learned Presiding Officer, Fast Track Court, Anjar vide judgment and order dated 31.3.2008 has dismissed the said application by holding that no sufficient cause has been shown. Being aggrieved and dissatisfied with the same, the petitioners have preferred the present Special Civil Application under Article 227 of the Constitution of India. 5. Shri Amit Patel, learned AGP appearing for the petitioners has submitted that learned Appellate Court has taken too technical view in deciding the application for condonation of delay. It is SCA/11681/2008 4/6 JUDGMENT submitted that in the facts and circumstances of the case, the learned Appellate Court ought to have condoned the delay in preferring the appeal and ought to have given an opportunity to the petitioners to submit the case on merits. It is submitted that there was no mala-fied intention on the part of the petitioners not to prefer the appeal within the period of limitation, therefore, it is requested to allow the present petition. 6. Petition is vehemently opposed by Shri Paul learned advocate for the respondents by submitting that the suit is of the year 2004 for the incident of 2001 and as there was no sufficient cause shown and when the delay has been condoned, it is requested to not to condone th delay and it is requested to dismiss the present petition. 7. Heard the learned advocates for the respective parties. At the outset, it is required to be noted that judgment and decree came to be passed by the learned trial Court on 11.5.2007 and the appeal came to be preferred on 6.11.2007, having been served with SCA/11681/2008 5/6 JUDGMENT the notice / summons in Darkhast Application No.13 of 2007 on 1.10.2007. It is the contentions on behalf of the petitioners State of Gujarat and another that they came to know about the impugned judgment and order only on service of summons of the Execution Petition and immediately thereafter they applied for the certified copy and preferred the appeal. In the facts and circumstances of the case, more particularly, when the petitioners State of Gujarat & another and considering the catena of decisions of the Hon'ble Supreme Court as well as this Court taking the view that while considering the application for condonation of delay the sufficient cause should be construed liberally, it appears to the Court if on imposition of a reasonable cost, if the delay is condoned in preferring the appeal, it will meets ends of justice. 8. Under the circumstances and for the reasons stated above, the learned Civil Judge, Anjar-Kutch dated 11.5.2007 in Civil Suit No.29 of 2004 is hereby quashed and set aside and delay cause in preferring the appeal against the judgment and decree passed in SCA/11681/2008 6/6 JUDGMENT Regular Civil Suit No. 29 of 2004 is hereby condoned on condition that petitioner shall pay the cost, which is quantified at Rs. 2500/-, which the petitioner are directed to pay to the respondent herein by way of Account Payee Cheque by R.P.A.D within a period of 4 weeks from today. On deposit the aforesaid amount, the learned Appellate Court is directed to decide and dispose of the appeal in accordance with law and on merits within a period of 6 months from the date of receipt of this order and /or production of the certified copy of the present order without fail. Rule is made absolute. (M.R.SHAH, J.) kaushik