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CA/69/4208 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 6942 of 2008
In
FIRST
APPEAL (STAMP NUMBER) No. 5272 of 2007
=========================================================
A
M C THROUGH MUNICIPAL COMMISSIONER - Petitioner(s)
Versus
SURAMYABHAI
MAHENDRABHAI PATHAK - Respondent(s)
=========================================================
Appearance
:
MS
JIRGA D JHAVERI for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/10/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)
At
the time of filing the First Appeal there was a delay and, therefore,
along with the said Appeal, the present Civil Application has been
filed wherein the applicant has prayed for condonation of delay of
905 days in filing the First Appeal. Therefore, Rule was issued on
17th September, 2008 which was made returnable on 14th
October 2008. Thereafter the matter was adjourned to today i.e. On
23rd October, 2008. Pursuant to the Rule issued by this
Court learned Advocate Ms. Kapadia for the other side has appeared
and filed Affidavit in Reply.
We
have heard learned Counsel for the parties and also gone through the
reasons mentioned in the Civil Application on oath regarding
condonation of delay. Reasons as to why Appeal could not be filed in
time are stated in Paragraph ? 2 of the Application.
In
view of the fact that the reasons stated in this Application have not
been controverted by the other side by filing an Affidavit and also
in view of the principles governing the discretionary exercise of
power under Section 5 of the Limitation Act, 1963, we are of the view
that sufficient cause has been stated for not filing the Appeal in
time and hence, delay caused in filing Appeal is to be condoned and
Civil Application is required to be allowed.
For
the aforesaid reasons, this application is allowed. Delay of 905 days
caused in filing First Appeal is condoned. Rule is made absolute.
(R.P.DHOLAKIA,J.)
(Z.
K. SAIYED, J .)
sas
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