Dana Khoda & vs Bai Vali Veera & 4

RULE. Learned advocate Mr. Mehul S. Shah waives service of notice of Rule on behalf of the respondents.

2. In the facts and circumstances of the case and with the consent of learned advocates appearing for the parties, the present Civil Application is taken up for final consideration making Rule returnable forthwith.

3. By means of the present Civil Application, the applicant has prayed to condone the delay of 169 days. The said delay has occurred in filing the Restoration Application. The main Second Appeal No. 167 of 1995 was dismissed as per order dated 24.06.2014 for want of prosecution. The order dismissing the Appeal Page 1 of 4 C/CA/895/2015 ORDER reads as under, "On 10th April, 2014, the following order was passed:

On 23.10.2013, the following order was passed.

On record is the further affidavit of appellant no.2 dated 16.08.2013 in which it is stated on oath that the parties have settled the dispute outside the court. The settlement deed is also produced alongwith the affidavit. Since learned advocate for the other side has no instruction in this regard, fresh Notice to the respondents returnable on 02.12.2013. Direct service is permitted in addition to the regular mode of service.

However, thereafter learned advocate never appeared though the matter was listed on several occasions. Today also, though the matter was called out second time in the second half, learned advocate for the appellant was not present. As a last chance, s.o. To 15.04.2014.

The Appeal thereafter came to be posted from time to time without any following up by either side.

The parties appears to have settled the matter and the affidavit dated 16th August, 2013 in that regard is on record.

Today also none is present for either side nor any mention was made. Hence, Appeal stands dismissed for non-prosecution. Liberty is reserved for either side in case of difficulty."

applicant submitted with reference to averments in the present application in particular from paragraphs 3 and 4 thereof that it was only when the writ came to be issued, the applicant came to know about dismissal of Second Appeal. It was submitted that the advocate appearing for the applicant was also not aware about the order. It was submitted that soon thereafter, the steps were taken and Misc. Civil Application was filed for restoration of Appeal.

5. Learned advocate Mr. Mehul S. Shah for the respondents opposed the prayer by submitting that a wrong fact was stated about settlement and there was no satisfactory explanation for delay.

6. From the aforesaid order dismissing the Appeal for want of prosecution, it appears that the appellant had submitted before the Court that the parties had settled the dispute and after filing such affidavit, learned advocate did not appear before the Court. Subsequently, the Appeal came to be dismissed for want of prosecution. With this background, the ground furnished for explaining the delay is absence of the knowledge of the order. It is true that the advocate and the parties ought to have more vigilant, however, at the same time, it could not be said that the ground furnished is not bona fide. It is reasonable to believe the say of the applicant and submission of learned advocate for the applicant that they were not aware about the order; when the application for Page 3 of 4 C/CA/895/2015 ORDER restoration was filed, the time had passed and delay of 169 days resulted into unintentionally.

4. In the facts and circumstances of the case, it could be said that sufficient cause is made out. Delay is condoned. Application is allowed. Rule is made absolute.

5. Registry may post main matter on Board as requested by both learned advocates.

(N.V.ANJARIA, J.) chandrashekhar Page 4 of 4