Champaben Bhikhalal Majithia and Others vs State of Gujarat and Another

M.R. Shah, J.—Rule. Mr. Niraj Soni, learned Assistant Government Pleader waives the service of notice of rule on behalf of the respondents.

With the consent of the learned advocates appearing on behalf of the respective parties, present Civil Revision Application is taken up for final hearing today.

Present Civil Revision Application has been preferred by the petitioners herein - original plaintiffs/respondents challenging the order dtd.7/12/2009 passed by the learned Principal District Judge, Porbandar in Civil Misc.Application No. 35 of 2006, by which the learned Judge allowed the said Civil Misc.Application submitted by the respondents herein u/s 5 of the Limitation Act and condoned the delay caused in preferring the appeal against the judgement and decree dtd.21/9/1999 passed by the learned Principal Civil Judge (SD), Porbandar in Regular Civil Suit 60 of 1991.

Mr. J.R. Nanavati, learned advocate appearing on behalf of the petitioners has submitted that looking to the huge delay even if the appellate court was satisfied that a sufficient cause is made out and/or some lenient view shall be taken while considering the application submitted by the respondents to condone the delay, in that case also while condoning the delay the learned appellate court ought to have imposed certain cost. It is submitted that if the order passed by the learned appellate court condoning the delay in preferring the appeal is modified to the extent that while condoning the delay cost quantified at least at Rs. 10,000 is imposed and/or on that condition if the delay is condoned, in that case, the petitioners do not invite any further reasoned order and let the appeal be decided on merits.

Having heard the learned advocates appearing on behalf of the respective parties and considering the facts and circumstances of the case and the impugned order passed by the learned appellate court allowing the Civil Misc.Application No. 35 of 2006 and condoning the delay of approximately seven years in preferring the appeal, it appears that the learned appellate court has exercised the discretion and the same is not required to be interfered with. However, considering the impugned order it appears that while condoning the delay and even taking a liberal view the learned appellate court ought to have imposed cost while condoning the delay. In the facts and circumstances of the case, this Court is of the opinion that while condoning the delay, if the cost of Rs. 7500=00 is imposed it would meet the ends of justice and to that extent the impugned order passed by the learned appellate court deserves to be modified.

In view of the above and for the reasons stated above, the present Civil Revision Application succeeds in part. The impugned order dtd.7/12/2009 passed by the learned Principal District Judge, Porbandar in Civil Misc.Application No. 35 of 2006 is modified to the extent that the delay in preferring the appeal against the judgement and decree dtd.21/9/1999 passed by the learned Principal Civil Judge (SD), Porbandar in Regular Civil Suit 60 of 1991 is condoned on condition that the respondents herein shall pay cost quantified at Rs. 7500=00, which the respondents shall deposit with the appellate court within a period of two months from today and the same shall be permitted to be withdrawn by the petitioners herein. On such deposit the learned appellate court to decide and dispose of the appeal against the judgement and decree dtd.21/9/1999 passed by the learned Principal Civil Judge (SD), Porbandar in Regular Civil Suit 60 of 1991 in accordance with law and on merits at the earliest. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.