HANUMANT DEVELOPERS THROUGH PARTNER Vs. PANKAJBHAI M. KANABAR

JUDGEMENT

(1.) This Civil Application is filed under Sec. 5 and 14 of the Limitation Act , 1963 (hereinafter referred to as "the Act") praying for condoning delay of 48 days in preferring aforesaid Civil Revision Application, with a further prayer to exclude the delay of 1309 days as per Sec. 14 of "the Act". By way of aforesaid revision application, the applicants - original defendants challenged the order passed by Principal Senior Civil Judge, Gir Somnath - Veravel dtd. 12/5/2017 below Exhibit-106 in Regular Civil Suit No. 45 of 2013, whereby the application preferred by the present applicants - defendants to dismiss the suit or reject the plaint under Order VII Rule 11 or return the plaint to the plaintiffs as on the ground mentioned in the application Exhibit-106, came to be rejected by the trial Court. The applicants - defendants preferred Civil Miscellaneous Appeal challenging that very order which was beyond limitation, and therefore, an application was filed for condonation of delay in preferring an appeal before the Court of Principal District Judge, Gir Somnath - Veravel. However, as pointed out by the learned advocate for present respondent No. 5 that the said application praying for condonation of 80 days delay is filed without joining him as party respondent in the said application. However, original plaintiffs - respondent Nos. 1 and 2 herein along with Chief Officer, Veravel-Patan Joint Nagarpalika, Veravel and District Collector, Gir Somnath were already party in the said application. As submitted by the learned advocates for the appearing parties, after hearing all of them, who were party before the Court in that application, delay of 80 days came to be condoned without any objection, either non-joinder of other co-plaintiffs or on the ground of maintainability of appeal itself.

(2.) Thereafter, the appeal preferred by the applicants before the district Court came to be numbered and process came to be issued in the said appeal, as mentioned in the xerox copy of appeal memo, preferred before the district Court as per order below Exhibit-13, respondent Nos. 5 to 10 came to be added in the said appeal as party respondents, who were co-plaintiffs along with the respondent Nos. 1 and 2 herein. However, as recorded by the Principal District Judge, Gir Somnath - Veraval below Exhibit-1 that though process is duly served to opponent Nos. 4 to 10 in the said appeal, which includes present respondent Nos. 3 to 7, 9 and 10 vide Exhibit-18 to 23 and 25, where neither of the opponent Nos. 4 to 10 as aforesaid, appeared before the appellate Court personally or through an advocate to contest the appeal. Therefore, the Court was constrained to pass an order dtd. 2/7/2018 to proceed ex- parte against present respondent Nos. 3 to 7, 9 and 10.

(3.) During the pendency of the aforesaid appeal before the district Court, withdrawal purshis at Exhibit-34 came to be filed on behalf of the applicants herein, which was objected to by respondent No. 1 herein on the ground that since the applicants whiled away time either in proceeding delay condonation application or even appeal before the prayer for withdrawal of appeal, maximum cost should be awarded and further to order special cost to be paid to the respondents. The said objection also reflects that even withdrawal purshis was also objected to during the course of personal hearing. However, vide order dtd. 30/3/2021, the Principal District Judge, Gir Somnath - Veraval, passed order below Exhibit-34 after hearing the parties, permitting withdrawal of the appeal and disposed of the same. Pursuant thereto, by passing order below Exhibit-1 in the said appeal, the appeal was treated to be disposed of by the order dtd. 30/3/2021. After withdrawal of the said appeal from the district Court, the applicants presented aforesaid Civil Revision Application before this Court on 1/5/2021 along with present Civil Application praying for condonation of delay as also the exclusion of a period consumed while preferring the appeal in a wrong forum along with an affidavit affirmed on that very date.