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SCA/15378/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15378 of 2010
=========================================================
GUJARAT
ELECTRICITY BOARD NOW DAKSHIN GUJARAT VIJ CO LTD - Petitioner(s)
Versus
BHAGWATBHAI
MANORBHAI PATEL & 1 - Respondent(s)
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Appearance
:
MR
SN SINHA for
Petitioner(s) : 1,
MR AMIT V THAKKAR for Respondent(s) : 1,
NOTICE
SERVED for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/02/2011
ORAL
ORDER
1. The
petitioner herein has challenged the order dated 09.08.2010 passed by
the Principal Senior Civil Judge, Surat in Delay Application No. 75
of 2008 for condonation of delay whereby the said application was
rejected.
2. It
is the case of the petitioner that on 05.01.1994 the checking squad
of the petitioner company carried out raid in the premises of the
respondent and found that they were drawing power directly from the
service line of the petitioner company from a nearby pole. The
respondents were not consumers of the petitioner company. The
petitioner company issued bill for Rs. 4,62,516.98 calling upon the
respondents to make payment. The respondents failed to make payment
and therefore the company issued notices. Thereafter, the petitioner
company filed Special Civil Suit No. 314 of 1995 in the Court of
Civil Judge (Senior Division), Surat for recovery of the amount with
interest but the same was dismissed on 27.03.2008. It is the case of
the petitioner company that the company was not informed about the
dismissal of the suit and therefore there was a delay of about 135
days in preferring restoration application being Delay Application
No. 75 of 2008. The delay application was dismissed by the trial
court and hence the present petition is preferred.
3. Mr.
Sinha, learned advocate appearing for the petitioner company has
submitted that the petitioner is a company constituted by the
Government of Gujarat in exercise of the powers under the Gujarat
Electricity Industry (Re-organisation & Regulation) Act, 2003.
He has submitted that the impugned order dismissing the suit for
default was not brought to the knowledge of the petitioner by the
learned advocate for the petitioner before the trial court and
therefore there was a delay in filing the restoration application.
4. Mr.
Thakkar, learned advocate appearing for the respondents has supported
the order of the trial court and submitted that the delay is not
required to be condoned in view of the fact that the petitioner being
a company was represented by an advocate and therefore it would not
be appropriate for the petitioner to submit that they were not aware
about the order dismissing the suit.
5. This
court has heard learned advocates for either side and perused the
papers on record. The trial court has rejected the delay condonation
application on the ground that the petitioner did not file the
restoration application within limitation period and that even the
application for certified copy was made on 18.06.2008. The trial
court has found that no plausible explanation was given while filing
the delay condonation application
which is true.
5.1 It
is pertinent to note that the petitioner company is a
statutory authority constituted under the Electricity Act. It is
well settled that on account of an
impersonal machinery and the inherited bureaucratic methodology
imbued with the note making, file pushing and passing on the buck
ethos, delay on the part of such statutory body is less difficult to
understand though more difficult to approve. In that view of the
matter, this court is of the opinion that the approach of the Courts
must be to do even-handed justice on merits in preference to the
approach which scuttles a decision on merits.
6. It
is also required to be noted that due to such a conduct of the
petitioner company, great inconvenience has been caused to the
respondents as well. In that view of the matter, this court is of the
opinion that interest of justice will be served if
the delay is condoned on payment of appropriate costs by the
petitioner company.
6. Accordingly,
the delay of 135 days caused in filing the restoration
application before the trial court is hereby condoned on condition
that the petitioner company pays cost of Rs. 7500/- to the
respondents by way of an account payee cheque within a period of two
weeks from today. The trial court shall hear the restoration
application on merits after the cost is paid to the respondents and
pass order accordingly. Petition is allowed to the aforesaid extent.
(K.S.
JHAVERI, J.)
Divya//
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