Amratbhai Karamshibhai Desai vs Patel Thakarshibhai ...
2023 Latest Caselaw 2455 Guj

     C/SCA/19426/2022                            ORDER DATED: 23/03/2023




             R/SPECIAL CIVIL APPLICATION NO. 19426 of 2022

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                     AMRATBHAI KARAMSHIBHAI DESAI
                                Versus
                   PATEL THAKARSHIBHAI DHARAMSHIBHAI
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Appearance:
MR GAURANG K PATEL(2613) for the Petitioner(s) No. 1,2,3
MR NIKUNJ SAVALIYA(12918) for the Respondent(s) No. 1
MR RATILAL V SAKARIA(6613) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 23/03/2023
                             ORAL ORDER

1. The present petition is filed being aggrieved by the order

below Exh.5 passed in Civil Misc. Application No.37 of 2021

by the learned 3rd Additional District Judge, Dhrangadhra on

01.04.2022, in which, learned 3rd Additional District Judge has

rejected the application for condonation of delay preferred by

the petitioners herein.

2. Heard Mr. Gaurang Patel, learned advocate appearing

for the petitioners and Mr. Nikunj Savaliya, learned advocate

appearing for the respondent.

3. Mr. Gaurang Patel, learned advocate appearing for the

petitioners submitted that the respondent - original plaintiff

C/SCA/19426/2022 ORDER DATED: 23/03/2023

has filed the Special Civil Suit No.48 of 2013 before the

learned Additional Senior Civil Judge, Dhrangadhra for

cancellation of sale-deed dated 12.02.2013 and for permanent

injunction against the petitioners herein. He further submits

that the learned trial Court has passed order by allowing the

suit in favour of respondent on 14.03.2018 by declaring

cancelled and void the sale-deed no.252 which was registered

on 12.02.2013.

4. Mr. Patel, learned advocate further submitted that bring

aggrieved and dissatisfied with the judgment and decree

dated 14.03.2018, the petitioners herein had preferred

appeal, where there is some delay in preferring appeal and

therefore, petitioners had filed the Civil Misc. Application

No.11 of 2018 for condonation of delay in preferring the

Regular Civil Appeal No.5 of 2020, which was allowed vide

order dated 08.02.2019. He further submitted that due to

some technical reason, the appeal was not registered and the

present petitioners were directed to pay the court fees on

appeal within a period of 15 days, however, due to oversight

and Covid-19 was going on, the petitioners herein could not

C/SCA/19426/2022 ORDER DATED: 23/03/2023

pay the court fees in time till 12.10.2020 and the learned

Additional Sessions Judge, Dhrangadhra vide order dated

12.10.2020 dismissed the appeal without entering into the

merit default on the ground of non-payment of court fees.

5. Mr. Patel further submitted that against the order dated

12.10.2020, the petitioners had preferred restoration

application alongwith the application for condonation of delay

in preferring the restoration application on 26.07.2021, which

is numbered as Civil Misc. Application No.37 of 2021. He

further submitted tat the learned 3 rd Additional District Judge,

Dhrangadhra has rejected the application for condonation of

delay vide order dated 01.04.2022 by holding that the grounds

mentioned in the application are not found reasonable and no

sufficient cause is made out for condonation of delay in filing

the restoration application.

6. Mr. Patel further submitted that learned trial Court has

grossly erred in taking hyper technical view as there is

genuine difficulty on the part of petitioners. He further

submitted that thought the petitioners had not made specific

averments in the application, but during the period between

C/SCA/19426/2022 ORDER DATED: 23/03/2023

08.02.2019 and 12.10.2022, there is Covid pandemic

prevailing after March, 2019 and the Courts are closed down

during that period. He has also submitted that the learned

trial Court has not considered the aspect that the appeal

preferred by the petitioners and he has no reason to proceed

with the appeal as the learned trial Court passed the

judgment and decree against him because prejudice to his

rights. However, considering the circumstance beyond his

control, the delay is required to be condoned by the learned

trial Court, which the learned appellate Court has not

condoned the delay considering the issue, by taking hyper

technical approach in the matter. He has submitted that no

prejudice is caused to the otherside if the appeal is proceeded

on merit after consideration of restoration application by the

learned lower appellate court.

7. Mr. Nikunj Savaliya, learned advocate appearing for the

respondent submitted that learned lower Court has not

committed any error as sufficient time was granted and the

petitioners remained negligent in paying the court fees. Even

while preferring the appeal, there is delay caused in appeal,

C/SCA/19426/2022 ORDER DATED: 23/03/2023

which was condoned by the learned lower appellate court,

thereafter, the time is granted, which would paid in such

allowing period and there is no sufficient cause made out by

the present petitioners on his application for delay and

therefore, the learned trial Court has rightly rejected the

application.

8. I have considered the rival submission of the respondent

and I have considered the fact that the impugned order

passed by the learned lower Court is dated 01.04.2022 and

appeal is ordered to be dismissed for default on 12.10.2020.

Considering the fact that the petitioners had preferred

application for condonation of delay on 26.07.2021, now it is

well known fact that during the pandemic period, the Courts

are not working in its full strength and considering such

aspect, the Hon'ble Apex Court in suo motu proceedings

excluded the period of limitation by considering the period

from March, 2020 onwards and considering the fact that the

appeal is preferred by the petitioners, the said appeal is

dismissed for default on the ground that the petitioners have

not paid amount of court fees within stipulated time, I found

C/SCA/19426/2022 ORDER DATED: 23/03/2023

that the case is made out to interfere with the judgment and

order passed below Exh.5 passed in Civil Misc. Application

No.37 of 2021 by the learned lower Court rejecting

application for condonation of delay on 01.04.2022.

9. In view of the judgment of the Hon'ble Apex Court and in

the facts and circumstances of the case, the impugned order

dated 01.04.2022 passed below Exh.5 in Civil Misc.

Application No.37 of 2021 by the learned Additional District

Judge is hereby quashed and set aside by directing the

petitioners herein to pay an amount of Rs.2,500/- towards

costs before the concerned trial Court, within one week from

today. Consequently, the application for restoration shall be

heard on its own merit by the learned 3 rd Additional District

Judge, Dhrangadhra as expeditiously as possible and the same

shall be decided within 30 days from the date of receipt of the

order.

10. With the above observations, the petition stands allowed.

(SANDEEP N. BHATT,J) A. B. VAGHELA