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CA/2406/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 2406 of 2011
In
FIRST
APPEAL (STAMP NUMBER) No. 370 of
2011
=========================================================
NARPATSANG
@ NARPATSINH TAKHATSINH JADEJA & 3 - Petitioner(s)
Versus
MAN
INDUSTRIES INDIA LTD & 11 - Respondent(s)
=========================================================
Appearance
:
MR
MAULIK J SHELAT for
Petitioner(s) : 1 - 4.
RULE SERVED BY DS for Respondent(s) : 1 -
3,8 - 12.
MR BY MANKAD for Respondent(s) : 1,
MR NALIN K
THAKKER for Respondent(s) : 4 - 7.
GOVERNMENT PLEADER for
Respondent(s) : 8 -
10.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 27/06/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
present application is for condonation of delay of 708 days in
preferring appeal against the judgment and decree passed by the
learned Civil Court, Anjar-Kutch in Special Civil Suit No.16 of 2008.
2. Respondents
are served. Mr.Mankad, learned advocate has filed appearance for
respondent No.1 and Mr.Thakkar, learned advocate for respondent nos.4
to 7 and Mr.Soni, learned AGP for respondent Nos.8 to 12.
3. Considering
the facts and circumstances it appears that the impugned order was
passed on 03.12.2008. Thereafter the petitioner preferred two writ
petitions before this Court one was Special Civil Application
No.27445 of 2007 and another was Special Civil Application No.10904
of 2009. Further, the review application was also preferred and the
same came to be dismissed.
4. Under
the circumstances looking to the observations made by this Court in
Special Civil Application coupled with the aspects that appeal could
be filed and the Special Civil Application was wrongly filed, it can
be said that the petitioners were prosecuting the wrong forum and
under the circumstances it would be a valid ground to condone the
delay. Further, Special Civil Application is filed on 25.01.2011 and
the present appeal has been filed on 09.02.2011. It further appears
that there is a case to be considered in the appeal. Under the
circumstances we find it proper to exercise the discretion to condone
the delay by taking lenient view in the matter.
5. However,
even if lenient view is taken on the aspect of delay, the petitioner
can not get away from paying the cost for the delay by way of
compensation on the aspects of delay.
6. Considering
the facts and circumstances appropriate cost for respondent Nos.1, 2
and 3 shall be Rs.2500/-, for respondent Nos.4 to 7 shall be Rs.5,000
and for respondent Nos.8 to 12 shall be Rs.2500, total cost of
Rs.10,000/-.
7. As
the amount of cost has already been deposited as per order dated
15.03.2011 passed by this Court, the respondent concerned can be
permitted to withdraw the quantum of the cost.
8. In
view of the aforesaid the delay in preferring the appeal has been
condoned on condition to pay the costs as stated above. As the amount
of cost has already been deposited and condition is complied with,
the concerned respondent shall be at the liberty to withdraw the
amount of cost to the extent ordered by this Court.
9. Application
is allowed to the aforesaid extent. Rule made absolute.
10.
It is further observed that as respondent No.4 has stated that she
is residing at Aadipur, the applicant-appellant shall carry out
necessary amendment in the cause title of the First Appeal as well as
interim applications made thereof.
11. Application
is disposed of accordingly.
(JAYANT
PATEL, J.)
(R.M.CHHAYA,
J.)
Amit
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