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CA/12988/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 12988 of 2009
In
FIRST
APPEAL (STAMP NUMBER) No. 5646 of 2009
=========================================================
KARANNAGAR
GRAM PANCHAYAT THROUGH ITS SARPANCH - Petitioner(s)
Versus
HARSHADRAI
BABULAL PANDYA - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
MR MB GANDHI for Respondent(s) : 1,
MR
CHINMAY M GANDHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 25/03/2010
ORAL
ORDER
1. Present
application has been preferred under Section 5 of the Limitation Act
seeking condonation of delay of about 19 months and 7 days caused in
preferring the appeal against the judgment and decree dated
05.01.2008 passed by the 5th Additional Senior Civil
Judge, Mehsana in Special Civil Suit No.85/1999.
2. Having
regard to the averments made in the application and submissions made
by the learned counsel of the applicant, the Court, by order dated
18.12.2009, admitted the application and issued Rule, which was made
returnable on 23.12.2009.
3. The
application has been opposed by the opponent by filing reply
affidavit. The opponent has, inter-alia, claimed that the person, who
runs the panchayat is bound to know all the facts including the fact
as to the date of the judgment and when it is delivered. The opponent
has also stated that the applicant-Panchayat had made an application
for certified copy after three months, and therefore, the application
seeking condonation of delay is unjustified and the applicant is not
entitled for benefit of condonation of delay. The opponent has also
stated that in view of the direction in the judgment sought to be
impugned, the application does not deserve to be entertained and
granted, particularly because, as per the opponent there is no
direction against the applicant.
4. The
applicant seeking condonation is a panchayat. The panchayat feels
aggrieved by the judgment and decree dated 05.01.2008 passed in
Special Civil Suit No.85/1999 and seeks to challenge the same by way
of proposed First Appeal on the grounds stated in the memo of appeal.
5. It
is to be noted that after the opponent filed the reply affidavit, the
applicant has filed rejoinder and has stated, inter-alia, that
present opponent himself has filed an appeal against the very same
judgment and order (which present applicant seeks to challenge by way
of proposed appeal) and that the present opponent’s said appeal was
delayed by 444 days and that the present opponent had preferred an
application seeking condonation of delay in filing said appeal and
this Court (Coram: Hon’ble Mr. Justice H.K.Rathod) has, by order
dated 25.06.2009, condoned the delay of 444 days caused by present
applicant in preferring the appeal.
6. On
behalf of the applicant-Panchayat it has been contended that the
opponent, who himself caused delay of 444 days in preferring appeal
against the very same judgment and in whose favour the delay came to
be condoned by order dated 25.06.2009, is now raising objection
against panchayat’s application seeking condonation of delay.
7. Mr.Gandhi
for the opponent has submitted that the opponent has strong objection
against the request for condonation of delay as prayed for by the
applicant. The opponent has not been able to justify his objection
already having caused delay in presenting his appeal against the same
judgment.
8. On
behalf of the applicant-Panchayat reliance is placed on the averments
made in the application as well as in the rejoinder affidavit.
9. Having
regard to the fact that both parties, who were party to the
proceedings of Special Civil Suit No.85/1999, are aggrieved by the
same judgment and order and in respect of the appeal preferred by the
present opponent-original plaintiff, delay has already been condoned
and the appeal (preferred by the present opponent i.e. original
plaintiff) is already admitted by order dated 22.09.2009, it appears
appropriate and in interest of justice that the delay caused by
present applicant deserve to be condoned and the applicant-Panchayat
cannot be denied the said relief when opponent’s appeal stands
admitted. It also emerges that the applicant has, even independent of
the fact that the delay by the opponent in filing appeal has already
been condoned, made out sufficient cause to condone the delay and has
given satisfactory explanation regarding the delay caused in
preferring the appeal.
10. Having
regard to the submissions of the applicant and the averments in the
application, sufficient cause is made out. The opponent shall not be
prejudiced if delay is condoned. Since opponent’s application seeking
condonation of delay has been allowed without any order of cost, I am
not inclined to make any order about cost. Hence, in the interest of
justice and in light of the explanation given by the applicant, the
delay caused in preferring the appeal against the judgment and decree
dated 05.01.2008 passed in Special Civil Suit No.85/1999 is condoned.
11. The
relief prayed for in para-3(a) is granted. Rule is made absolute in
the aforesaid terms and to the aforesaid extent.
(K.M.Thaker,J.)
rakesh/
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