SCA/28874/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 28874 of 2007 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 ========================================================= NAYANBEN H BHAGAT - Petitioner(s) Versus REKHABEN JASVANTLAL PATEL & 2 - Respondent(s) ========================================================= Appearance : MR BAIJU JOSHI for Petitioner(s) : 1, MR HN BRAHMBHATT for Respondent(s) : 1, MR SR DIVETIA for Respondent(s) : 2, NOTICE SERVED for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/07/2008 ORAL JUDGMENT 1. Rule. Mr.H.N.Brahmbhatt, learned advocate waives service of notice of Rule on behalf of SCA/28874/2007 2/6 JUDGMENT respondent No.1 and Mr.S.R.Divetia, learned advocate waives service of notice of Rule on behalf of respondent No.2. Though served, none appears on behalf of respondent No.3. With the consent of the learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. Shri Baiju Joshi, learned advocate appearing on behalf of the petitioner has stated at the bar that though in the present application the petitioner has challenged the two orders passed by the trial court; one rejecting the application of the petitioner for joining him as a party in the suit and second in rejecting the application of the petitioner to condone the delay in preferring the review application, to review the order by which the trial court dismissed the application of the petitioner for joining as party in the suit. It is submitted that so far as present special civil application is concerned, the same may be confined to challenging the order passed by the trial court in not condoning the delay in preferring the review application. SCA/28874/2007 3/6 JUDGMENT 3. It appears that the petitioner submitted an application Exh.11 in the pending suit for joining as party – defendant No.3, and it is the case on behalf of the petitioner that the same came to be dismissed ex-parte as the learned advocate for the petitioner did not remain present and therefore the petitioner thereafter submitted review application requesting the trial court to recall the order. However, as there is a delay of 190 days in preferring the review application and therefore an application was submitted to condone the delay. However, the trial court by impugned order has dismissed the application and has not condoned the delay in preferring the review application. 4. Shri Baiju Joshi, learned advocate appearing on behalf of the petitioner has submitted that considering the fact that even the order which was sought to be reviewed was an ex-parte order, the trial court ought to have condoned the delay in preferring review application and ought to have considered the review application on merits rather SCA/28874/2007 4/6 JUDGMENT than non-suiting the petitioner on technical ground of delay. It is submitted that by condoning the delay, no prejudice would be caused to the respondents as after condoning the delay the review application will be heard on merits, and if the delay is not condoned, in that case, the petitioner will be deprived of submitting the review application on merits. 5. Shri H.N.Brahmbhatt, learned advocate appearing on behalf of one of the respondent-original plaintiff has submitted that as no sufficient cause was made out, the trial court has rightly rejected the said application and rightly not condoned the delay and therefore it is requested to dismiss the present application. 6. Shri S.R.Divetia, learned advocate appearing on behalf of respondent No.2 has requested to pass appropriate order. 7. Heard the learned advocates appearing for the respective parties. SCA/28874/2007 5/6 JUDGMENT 8. It is required to be noted that the order which was sought to be reviewed by submitting review application was an ex-parte order and therefore the trial court ought to have considered the sufficient cause liberally. As held by the Hon'ble Supreme Court and this Court in catena of decisions normally the decision should be on merits and the parties to be permitted to submit the case on merits rather than non-suiting on the technical ground of delay. Shri Baiju Joshi, learned advocate is right in submission that if the delay would have been condoned in that case the review application is required to be heard and decided on merits and therefore no prejudice would be caused to the respondents. 9. Under the circumstances, without expressing any opinion on merits with respect to the review application, the impugned order passed by the trial court in not condoning the delay in preferring review application is set aside and the delay caused in preferring review Application is hereby condoned. Now the trial court will decide and dispose of the SCA/28874/2007 6/6 JUDGMENT review application in accordance with law and on merits. 10. Rule is made absolute accordingly. There shall be no order as to costs. Direct service is permitted. ( M.R. SHAH, J. ) syed/