KANUBHAI @ KANAIYALAL BABALDASDARJI Vs. RAMDHAN VAIDYNATHJI JAT

JUDGEMENT

(1.) THE present application has been preferred by the applicants for restoration of the First Appeal (Stamp) No.1055/06 as well as for restoration of Civil Application No.3621/06 and it is prayed by the applicants to extend the time for depositing the cost amount and allow the applicants to proceed with the matter and decide the same as per the provisions of law. I have heard Mr.Tejas Satta, learned counsel for the applicants. In order to see that the merits of the matter may not be frustrated, I have also heard the learned counsel appearing for the applicants on merits of the First Appeal.

(2.) AS such, the present application as well as all proceedings throughout are hopelessly barred by delay and for the reasons recorded hereinafter, it is clear that there is careless approach on the part of the applicants in prosecuting the remedy and there is no sufficient explanation which may call for exercise of discretion for condonation of delay. The circumstances are as under: The judgment of the Tribunal which is under challenge in the appeal is passed as back as on 17.09.2004 and the appeal was filed with this Court on 23.03.2006. Thereafter, since there was delay in preferring appeal, an application for condonation of delay was filed being Civil Application No.3621/06 and the said application was disposed of by this Court by observing that the delay is condoned on payment of cost of Rs.250 to each of the respondents. Since there were three respondents, the cost of Rs.750.00 was to be deposited. The pertinent aspect is that prior to the order dated 17.08.2007, the applicants did not disclose that the first applicant Kanubhai Darji had expired on 26.02.2007.

(3.) THEREAFTER , for a period of about 2 years, no attempt was made to even deposit the amount of cost nor any application for extension was made. Therefore, on 25.09.2009, as the delay could not be said to have been condoned, the first appeal was disposed of by dismissal thereof. Thereafter, for a period of about 3 years, no steps whatsoever were taken and on 20.12.2012, the present application is stated to have been filed for restoration of the First Appeal. The aforesaid shows that if the date of the impugned judgment in the first appeal is considered, the period of about 8 1/2 years has passed. If the date of filing of the first appeal is considered, the period of about 6 years has passed. If the date of default in payment of cost is considered, the period of about more than 5 years has passed. As such, the appeal could be said to have been dismissed upon the expiry of the period of about four weeks as provided vide order dated 17.08.2007 and therefore, the appeal automatically could be said as having dismissed since delay was not condoned and if the said date is considered, the period of about more than 5 years has passed. If the date of formal order of dismissal of first appeal is considered, the period of more than 3 years has passed. The pertinent aspect is that there is no sufficient explanation for such a long delay in preferring the application as well as in taking steps well in time.