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CA/2031/2010 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 2031 of 2010
In
APPEAL
FROM ORDER-STAMP NUMBER No. 35 of 2010
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MOHAMMEDHUSSAIN
ABDULREHMAN SHAIKH & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 9 - Respondent(s)
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Appearance
:
MR
RK MISHRA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,
1.2.6,1.2.7 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3.
MRS VS
PATHAK AGP for Respondent(s) : 1, 4,
RULE SERVED BY DS for
Respondent(s) : 2,5 - 10.
HL PATEL ADVOCATES for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 08/10/2010
ORAL ORDER
The
applicants have taken out present application, under Section 5 of the
Limitation Act, seeking condonation of delay of 523 days caused in
filing the appeal. The appellants are aggrieved by the order dated
11.03.2008 passed by the learned trial Court below notice of motion
whereby the learned trial Court has rejected the notice of motion.
The suit has been filed seeking restrain order against the Ahmedabad
Municipal Corporation {hereinafter referred to as AMC }
restraining it from regularizing certain constructions which
according to the plaintiffs-appellants, is illegal construction.
Differently put, the plaintiffs-appellants desires that the
construction in question, which according to them is illegal, should
not be regularized by the AMC and the suit is filed for such
declaration and direction.
For
the reasons recorded in the order, the learned trial Court has
rejected the notice of motion by impugned order dated 11.03.2008.
The
plaintiffs-appellants are aggrieved by the said order, however, have
caused delay in filing the appeal against the impugned order. The
delay, as aforesaid, is of 523 days. Hence, present application
seeking condonation of delay.
Out
of all the respondents, the respondent No.3-AMC against whom the
relief that it should not regularize the illegal construction is
prayed for, has come forward with the affidavit opposing the delay.
The respondent No.3-AMC has contended that the delay is not
satisfactorily explained and only vague averments are made and
therefore, the application may be rejected.
Having
regard to the averments made in the application and submissions made
during the hearing, it does not come out that the delay was caused
with ill-intention. The reasons which caused delay have been stated
in the application. It appears that instead of rejecting the
application and depriving the applicants-appellants from prosecuting
the appeal on merits, it would be in the interest of justice to allow
present application and condone the delay so that all the parties,
including the respondent No.3-AMC, can get an opportunity to
prosecute and/or defend he appeal on merits.
In
view of above, the application is allowed in terms of para
9(A).
Rule is made absolute to the aforesaid extent.
In
the facts and circumstances of the case, no order as to cost.
[K.M.Thaker,
J.]
kdc
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