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SCA/5178/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5178 of 2010
=====================================
KASHMIRABEN
D/O LATE ASHOKKUMAR @ YASHVANTKUMAR TANK AND WIF - Petitioner(s)
Versus
DEVENDRAKUMAR
ASHOKKUMAR @ YASHVANTKUMAR J TANK & 2 - Respondent(s)
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Appearance
:
MR MAHENDRA U VORA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 29/04/2010
ORAL
ORDER
1.0 The
petitioner original opponent no. 1 is before this Court being
aggrieved by an order passed by the learned Additional District Judge
and Presiding Officer, 4th Fast Track Court, Banaskantha @
Deesa dated 26th March 2010, whereby, the application
seeking condonation of delay of 296 days is allowed, is challenged in
this petition.
2.0 The
learned advocate for the petitioner vehemently submitted that the
Court below has committed an error in condoning the delay of 296
days. He submitted that the ground of delay was not properly
explained and the ground put forward was not supported by affidavit
of the concerned advocate. He submitted that the ground set out for
cause of delay is that the learned advocate to whom the papers were
assigned did not file the appeal in time. He submitted that no
affidavit of that advocate is filed in support of the aforesaid
ground. In this regard he relied upon a decision of this Court in
the matter of Dilipsinh Pravinsinh Vs. Suvidha Builders, reported in
2004 (2) GCD 1300 (Guj). He submitted that this Court has held that
once the delay is sought to be condoned on the ground that after the
order was passed, the advocate of the party did not inform the party
concerned, an affidavit of the advocate in support of that be filed.
3.0 It
is not necessary that every time, in support of the contentions, an
affidavit is required to be filed and that too, of an advocate. Many
advocates may not support the party concerned for various reasons and
may not file affidavit in support of the party for seeking
condonation of delay when there is other material to show that the
ground set out in the application seeking condonation delay is
genuine, only because an affidavit is not filed the delay cannot be
refused to be condoned.
3.1 This
Court is conscious that the condonation of delay is a discretion of
the Court and if the Court has exercised the discretion in favour of
the party who could approach late to the Court, more particularly, in
light of the various decisions of this Court which are discussed by
the learned Judge at length, this Court finds that no error has been
committed by the Court below which will warrant interference at the
hands of this Court. Hence, dismissed.
[
Ravi R. Tripathi, J. ]
hiren
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