HIMMATLAL BHAVAN CHAVDA Vs. JAYABEN SHIVLAL CHAVDA

JUDGEMENT

(1.) By way of present petition, the present petitioner has challenged the order dtd. 8/10/2022 passed by the learned 8th Additional District Judge, Anjar - Kachchh, whereby, the learned Court below has rejected the application filed by the present petitioner for condonation of delay of 531 days caused in preferring the appeal.

(2.) Heard Mr. Malav Mulani, the learned advocate appearing for the petitioners. Mr. Mulani, learned advocate has submitted that the impugned order is improper, absolutely illegal and bad in law. He has further submitted that learned trial Court has not appreciated the fact that because of Covid-19 pandemic the delay has been caused as the entire state of affairs was shut and henceforth, the delay has been caused in preferring the appeal. He has further submitted that the statutory right of the parties to file appeal cannot be curtailed on such hyper-technical ground. He further submitted the learned trial Court has committed an error by rejecting the application below by discussion that since the suit was not heard ex-parte, hence, the petitioners ought to have knowledge of the judgment/ decree passed in the suit. He has further submitted that the petitioner has not filed formal affidavit that the delay should not be considered. Therefore, he prays to this Court to allow the present petition by imposing appropriate cost.

(3.) I have considered the averments made in the application filed by the present petitioner for condonation of delay. I has also perused the judgment and order passed by the learned trial Court. Even the present petitioner has not given any reason in the application for condonation of delay. The petitioner has made incorrect averments by saying that they are having no knowledge about passing of the judgment and decree. The petitioner has no sufficient cause for not preferring the appeal within prescribed period. The learned trial court has dealt with all the submissions in appropriate manner. The suit is not decided ex-parte without filing appearance by the petitioner- defendant as the present petitioner duly served and they have filed their written statement in the original suit. As per the C.P.C., the appeal can be filed from the date of the decree or order within 30 days. Article 116 of the Limitation Act provides that the limitation of 90 days if the appeal is to be filed in the Hon'ble High Court from any decree or order and the limitation is 30 days, if the appeal is to be filed to any other court from any decree or order. In the present case, the judgment and decree is passed on 11/12/2017, against which, the appeal is required to be filed on 10/1/2018, but the appeal if filed on 25/6/2019. Therefore, there is no question of consideration about the condonation of delay as per the judgment of the Hon'ble Apex Court regarding covid-19 pandemic period as the appeal itself is filed in the month of March, 2023, moreover, the delay 531 days caused prior to the Covid period. Therefore, no advantage of explanation of the period of limitation is accessible. No satisfactory reason is assigned to condone the delay in filing the appeal.