Gujarat High Court Case Information System
Print
SCA/11871/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11871 of 2008
=========================================================
HARIJAN
PREMABHAI PITHABHAI GOHEL - Petitioner(s)
Versus
HARIJAN
KHETABHAI GOVINDBHAI GOHEL & 2 - Respondent(s)
=========================================================
Appearance :
MR
AR THACKER for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/09/2008
ORAL
ORDER
Leave
to place on record copy of the document at Annexure-D (Colly.)
containing order dated 16.06.2008 passed by the learned Judge which
is under challenge in this petition.
Petitioner
had approached the District Court challenging an order dated
11.05.2007 passed by the learned Principal Civil Judge, Mangrol in
Regular Civil Suit No. 28 of 1998. Since there was delay in filing
the appeal, the petitioner filed delay condonation application being
Civil Misc. Appeal No. 97 of 2007 seeking condonation of delay of 98
days. On the said application, the learned Additional District
Judge and Presiding Officer, 5th Fast Track Court,
Junagadh passed an order on 15.03.2008 condoning delay on condition
of deposit Rs.2,000/- by way of cost within 15 days from the date of
the order. Since the petitioner could not deposit the said sum, he
filed an application dated 16.06.2008 produced at Annexure-D
(Colly.) stating, inter alia, that he is engaged in labour work.
He, therefore, could not collect Rs.2,000/- in short time permitted.
His wife was unwell and thereafter, the Court went till summer
break. On all these grounds, he could not deposit Rs.2,000/- within
the time permitted. Such delay may be condoned and amount be
accepted. On this application, the learned Judge passed the
impugned order on 16.06.2008 stating that the case has been disposed
of. The application is, therefore, dismissed.
I
find that the learned Judge ought not to have treated the issue in
such summary fashion. The petitioner had shown sufficient reasons
preventing him from depositing the amount within the time permitted.
As noted herein that he is engaged in labour work. His wife was
not well. Sometime after the Court’s order, there was vacation in
the Court. All these grounds prevented him from making the deposit
within the time permitted. For such minor lapse, substantive right
of the parties cannot be damaged without adjudication. The
application itself could have been treated as one seeking extension
of time and recalling the order of dismissing the appeal for
non-fulfillment of the condition of condonation of delay. However,
if there was any technical error in drafting of the application
dated 16.06.2008, the petitioner could have been given sometime to
file appropriate application or to amend the prayer to include
setting aside of dismissal of the appeal. Unfortunately, in one
line order, the entire appeal came to be finally turned down, only
on the ground that the petitioner could not raise the amount of cost
within 15 days permitted by the learned Judge. If this order is
allowed to stand, the effect thereof would be that the appeal of the
petitioner would never be heard on merits.
Only
for this reason, I do not find it appropriate to call upon the other
side to respond to the High Court’s notice. This petition is,
therefore, dispose of permitting the petitioner herein to file an
appropriate application before the learned Judge concerned seeking
recalling of the said order dated 16.06.2008 and also praying for
setting aside of dismissal of the appeal filed by the petitioner.
If
the petitioner files such an application within one week from today
and also tenders cost of Rs.2,000/- as directed by the learned Judge
under his order dated 15.03.2008, such application shall be decided
bearing in mind the above observations.
The
petition is disposed of accordingly.
Direct
service is permitted.
(Akil
Kureshi, J.)
mrpandya*
Top