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CA/10075/2009 1/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION (CONDONATION OF DELAY)No. 10075 of 2009
In
SECOND
APPEAL (STAMP NUMBER) No. 201 of 2009
=========================================================
PATEL
KANTABEN PRAHLADBHAI - Applicants
Versus
RAIBEN
BECHARBHAI PATEL & 11 - Opponents
=========================================================
Appearance
:
MR
JN JADEJA for
Applicant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.3.1, 1.3.2,1.3.3
None for Opponent(s) : 1,
MR PANKAJ K SONI for Opponent(s) :
1.2.1, 1.2.2, 1.2.3,1.2.4 - 4,6 - 12.
MS RAKSHA S DIKSHIT for
Opponent(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4 - 4,6 - 12.
NOTICE SERVED
for Opponent(s) : 1.2.5, 5.2.1, 5.2.2,5.2.3
RULE SERVED for
Opponent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 14/10/2010
ORAL
ORDER
1. The
applicants have filed this application to condone delay of 50 days
caused in preferring Second Appeal.
2. According
to the applicants, the Second Appeal was required to be filed on or
before 29.4.2009 but on account of death of mother of opponents
No.1/1 and 1/3, who expired on 1.4.2009, they could not approach the
Court within prescribed period of limitation.
3. The
opponents have contested the application by filing reply contending
that all the heirs of deceased Dahyabhai Joitaram Patel are not
joined as party to the proceedings and the delay has not been
explained.
4. Learned
advocate Mr.Jadeja is absent in all the calls.
5. Learned
advocate Mr.Soni appears for all the opponents and has made oral
submissions.
6.
Having regard to the averments made in the application and oral
submission and in view of the decision of the Hon’ble Supreme Court
in the case of Improvement Trust, Ludhiana vs. Ujagar Singh and
others reported in (2010) 6 SCC 786, the Hon’ble Supreme Court
has held that hypertechnical approach has to be avoided and unless
malafides are writ large on conduct of the party, as a normal rule
delay should be condoned and attempt should always be made to allow
the matter to be contested on merits rather than throw it out on
technicalities. In view of the law laid down by the Hon’ble Supreme
Court, this Court is required to take liberal view with regard to
delay and as the applicants have shown sufficient cause to condone
the delay in filing the Second Appeal, this application is required
to be allowed.
6. In
the result, the application is allowed. Delay caused in filing
Second Appeal is condoned. Rule is made absolute with no order as
to costs.
(BANKIM
N.MEHTA, J.)
syed/
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