Thakor Bakaji Udaji vs Deceased Thakor Galabji Vadhaji
2022 Latest Caselaw 7102 Guj

     C/SCA/16903/2017                                 ORDER DATED: 08/08/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 16903 of 2017

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                        THAKOR BAKAJI UDAJI
                              Versus
             DECEASED THAKOR GALABJI VADHAJI & 3 other(s)
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1,1.6,2,2.1,3,3.2.3,4
DELETED for the Respondent(s) No. 3.2.3.1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3.2.2
NOTICE SERVED BY DS for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6.1,1.6.2,2.1.1,2.1.2,3.2.1,3.2.3.2,3.2.4,3.2.5,4.1
RAVI A PANDYA(8595) for the Respondent(s) No.
3.1.1,3.1.2,3.1.3,3.1.4,3.1.5
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  CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 08/08/2022

                               ORAL ORDER

[1.0.] This petition is filed challenging the order passed by

the Principal District Judge, Gandhinagar, dated 23.08.2017,

rendered in Civil Misc. Application No.174 of 2014, refusing to

condone delay of 85 days as mentioned, in an Appeal for

challenging the order passed by the Trial Court, rejecting

probate application.

[2.0.] Heard Mr. Darshan Dave, learned advocate for M/s

H.L.Patel Advocates for the petitioner.

     C/SCA/16903/2017                             ORDER DATED: 08/08/2022




[2.1.]        According to his submission, the impugned order

rejecting probate application came to be passed on 20.08.2014.

The copy whereof was applied on 29.09.2014, which was ready

for delivery on 19.11.2014 and the appeal came to be filed on

11.12.2014 praying for condonation of 85 days delay in

preferring the said application. However, according to him, if

days are calculated therein it appears that there is an apparent

mistake in calculating the same and it would be only 31 days

delay caused in preferring the appeal, challenging the order

passed by the Trial Court, refusing to grant the probate. He has

further submitted that the delay has occurred on the ground

mentioned in the application itself, because they came to know

about the rejection of the probate application only on

29.09.2014 and on very day they applied for certified copy

thereof, if it is calculated from the date of knowledge of the

dismissal, there is no delay at all. Therefore, he has prayed that

this petition be allowed and delay be condoned and the main

appeal preferred against the impugned order passed by the

Trial Court, refusing to condone the delay of 85 days, as

mentioned in it, otherwise there is no delay and if at all it is, it is

C/SCA/16903/2017 ORDER DATED: 08/08/2022

of only 31 days.

[3.0.] Though served, nobody appears for respondents. As

recorded in several orders, learned advocate Mr. Ravi A.

Pandya, represents respondent Nos.3.1.1 to 3.1.5 and rest all

are served, nobody opposes the application and there is no reply

filed to this petition, objecting to even condonation of delay. As

observed in an order dated 29.06.2022, matter would be taken

up for final disposal. Despite that, nobody is present.

[4.0.] Considering the fact that if delay is to be considered

from the date of knowledge, there is no delay at all and even if

there is a delay, it is not of 85 days, as mentioned in the

application filed in the Court below, it would be only 31 days

delay, which is sufficiently explained, and the learned Judge

could not have refused condoning the delay. In view of the fact

that nobody opposes, that too, delay of 31 days caused in

preferring the substantive appeal before the Appellate Court, I

deem it fit to allow this petition, quashing and setting aside the

order dated 23.08.2017 passed by the Principal District Judge,

Gandhinagar in Civil Misc. Application No.174 of 2014 and

condone the delay caused in preferring the appeal against the

C/SCA/16903/2017 ORDER DATED: 08/08/2022

impugned judgment and order of 04 th Additional Senior Civil

Judge, Gandhinagar, dated 20.08.2014, rejecting the application

for probate.

[5.0.] In view thereof, the proceedings by way of an appeal

filed before the District Court challenging the order passed by

the Trial Court, be numbered appropriately and it be heard on

its own merits in accordance with law. Hence, the present

petition stands disposed of in above terms. Direct service is

permitted.

(UMESH A. TRIVEDI, J) Lalji Desai