KANTILAL VALLABHDAS AND COMPANY Vs. KARADIA MANDABHAI NATHUBHAI

JUDGEMENT

(1.) The petitioner herein is the original plaintiff of Regular Civil Suit No. 41 of 1992. The aforesaid suit was filed for recovery of certain amount from the defendant. The said suit was dismissed in absence of the plaintiffs Advocate on 6.9.1994. The petitioner thereafter preferred an application for setting aside the ex parte order of dismissal of the suit under the provisions of Order 9 Rule 9 of CPC. Since there was a delay of 18 days in preferring the said application, separate application for condonation of delay in preferring the application for setting aside the ex parte order was also given, which was registered as Civil Miscellaneous Application No. 2 of 1995.

(2.) The learned Trial Judge, however, after hearing both the sides, came to the conclusion that no sufficient cause was shown for condoning the delay. Therefore, the learned trial Judge dismissed the said application for condonation of delay. At the time of hearing of this Revision Application, it was argued by Mr. R.A. Patel for Mr. Kyada that the learned Trial Judge has taken a very rigid view in deciding the application for condonation of delay. He has relied upon certain judgments of the Supreme Court to substantiate his say that in such matters, pragmatic view is required to be taken and even if the counsel for the party is negligent, the Court should not shut the doors of the litigant to decide his claim on merits. The Supreme Court has laid down that in condonation of delay, liberal approach should be taken. There are numerous judgments of the Supreme Court on this aspect. In Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., AIR 1987 SC 1353, the Supreme Court has stated that Sec. 5 is enacted in order to enable the courts to do substantial justice to the parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that the Supreme Court has been making a justifiably liberal approach in matters instituted in the Court, but the message does not appear to have percolated down to all the other Courts in the hierarchy. The Apex Court held that such a liberal approach should be adopted on principle as it is realized as under :

(3.) On the other hand, Mr. Malkhan, for the respondent, argued that there is no jurisdictional error and, therefore, this Court should not disturb the discretionary order passed by the Trial Court since the Trial Court has found that no sufficient cause was shown by the plaintiff for such condonation.