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SCA/10483/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10483 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 ?
=====================================================
AMRUTLAL
GAGUBHAI - Petitioner(s)
Versus
DISTRICT
SUPERINTENDENT OF POLICE & 2 - Respondent(s)
=====================================================
Appearance :
MR
PRAVIN GONDALIYA for Petitioner(s) : 1,
None for Respondent(s) : 1
- 2.
MR. AMIT PATEL ASSIT. GOVERNMENT PLEADER for Respondent(s) :
3,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/11/2008
ORAL
JUDGMENT
1. Rule.
Shri Amit Patel, learned AGP, waives service of notice of rule on
behalf of the respondent. With the consent of the learned advocates
for the respective parties, the matter is taken up for final hearing.
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 impugned order passed by the
learned Civil Judge (S.D.) Rajkot in Civil Miscellaneous Application
No. 602 of 2006 in not condoning the delay of 7.5 months (seven and
half months)in preferring the application for restoration.
3. It
appears that petitioner herein original plaintiff had instituted the
suit before the learned trial Court for declaration and permanent
injunction challenging his termination. The said suit came to be
dismissed for non-prosecution on 14.10.2005 neither the petitioner
nor the learned advocate for the petitioner has remained present
before the learned trial Court. Thereafter, the petitioner submitted
the application for restoration of the said suit, however as there
was a delay of 7.5 months (seven and half months) in preferring the
said application for restoration, the petitioner submitted the
application to condone the delay of 7.5 months (seven and half
months) and prayed to condone the delay, which came to be dismissed
by the learned trial by impugned order. Being aggrieved and
dissatisfied with the impugned order, the petitioner-plaintiff has
preferred the present Special Civil Application under Article 227 of
the Constitution of India.
4. Shri
Bavesh Rayani, learned advocate for the petitioner has submitted that
learned trial Court has taken a too technical view in not condoning
the delay and more particularly, there are no allegations that the
Restoration Application was not submitted by the petitioner with a
mala-fide intention and deliberately to delay the proceedings. It is
submitted that as held by the Hon’ble Supreme Court in catena of
decisions, the delay should be construed liberally and even on
imposition of certain costs the learned trial Court ought to have
condoned the delay in preferring the restoration application,
therefore it is requested to allow the present Special Civil
Application.
5. Shri
Amit Patel, learned AGP, while passing the impugned order has
submitted that the petitioner and /or his advocate has remained
negligent and it was a suit of 1991 and still in the year 2005
neither the petitioner nor the learned advocate has remained present
in 2005, therefore, learned trial Court was justified in dismissing
the suit for non-prosecution. It is submitted that no sufficient
cause has been made out to condone the delay of 7.5 months (seven and
half months), therefore, it is requested to dismiss the present
Special Civil Application.
6. Heard
the learned advocates for the respective parties. It appears that on
14.10.2005 neither the petitioner nor his advocate has remain present
before the learned trial Court, suit came to be dismissed for
non-prosecution. It is the case on behalf of the petitioner that his
advocate did not inform to the petitioner with respect to the
dismissal of the aforesaid suit and as soon as he came to know about
the same, he has preferred application for restoration and by that
time there was a delay of 7.5 months (seven and half months),
therefore, considering the above, the learned trial Court ought to
have condoned the delay. It is required to be noted that there are no
allegations that the petitioner has deliberately not filed the
restoration application within the period of limitation and / or with
a mala-fide intention, the application was not submitted within the
period of limitation. As held by the Hon’ble Supreme Court as well as
this Court in catena of decisions normally sufficient cause should be
construed liberally and opportunity should be given to the parties to
submit their case on merits rather than non-suiting the suit on
technical ground. Under the circumstances, it appears to the Court on
imposing reasonable cost, the learned trial Court ought to have
condoned the delay in preferring the restoration application. Under
the circumstances, impugned order deserves to be quashed and set
aside and delay in preferring the restoration application deserves to
be condoned on the imposing the cost upon the petitioner which is
quantified at Rs. 2500/- and petitioner shall deposit the same within
a period of two months from today with the trial Court.
7. For
the reasons stated above, petition succeeds and the impugned order
passed by the learned Civil Judge (S.D.) Rajkot in Civil
Miscellaneous Application No. 602 of 2006 in not condoning the delay
of 7.5 months (seven and half months)in preferring the application
for restoration is hereby quashed and set aside and delay in
preferring the restoration application is hereby condoned on
condition that the petitioner shall deposit Rs. 2500/- with the trial
Court within a period of two months from today and on such deposit
the respondent shall be permitted to withdraw the same. On such
deposit the delay is to be treated to have been condoned and the
learned trial Court to decide and dispose of the restoration
application only thereafter. If the amount of Rs. 2500/- as ordered
earlier is not deposited by the petitioner within a period of 2
months, the order passed by the learned trial Court impugned in the
present petition will stand. Rule is made absolute. Direct service
permitted.
(M.R.SHAH,
J.)
kaushik
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