DHANSUKHBHAI MALABHAI CHAUDHRY Vs. DANABHAI VELIYABHAI CHAUDHRY

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order passed by learned 8 th Additional District Judge, Surat at Bardoli dtd. 9/12/2021 in Civil Misc. Application No.14 of 2020 whereby application preferred for condonation of 115 months and 10 days delay caused in preferring the Regular Civil Appeal against the judgment and decree rendered against them, came to be dismissed.

(2.) Ms.Dhwani Thakkar, learned advocate for Ms.Seemabahen J. Mehta, learned advocate for the petitioners vehemently submitted that delay has caused as advocate representing them in the trial Court did not inform the petitioners about outcome of the proceedings. She has further submitted that over and above that, their mother was critically ill was also a party to the proceedings and she ultimately died in the year 2017. Therefore, according to her submission, though their advocate was contacted umpteen number of times but for unknown reasons, he could not be contacted and therefore, they had to take the help of other advocate from whom they came to know that judgment and decree is already passed against them on 30/6/2010. They came to know about the said fact only on 30/1/2020 and therefore, if considered from the date of knowledge, their application, which is filed on 10/2/2020, is within the time. However, if it is considered from the date of judgment and decree in all 115 months and 10 days delay caused in preferring the appeal.

(3.) Relying on an order dtd. 5/11/2009 rendered in Civil Application No.10302 of 2009 in First Appeal (Stamp Number) No.5095 of 2009 of this Court in the case of Kokilaben Kiritbhai Patel V/s. Joint General Manager, GSFC and others, it is submitted that for the mistake or lapse of an advocate, party should not suffer and therefore, she has submitted that it being the last opportunity for them, at-least, to have the decision on merit in an appeal, delay may be condoned and their appeal be directed to be heard on merit.