VISHAJI PUNAJI SELOT Vs. LILABEN PREMCHAND SHAH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dtd. 17/7/2014 passed by the 4th Additional District Judge, Banaskantha District at Deesa in Civil Misc. Application (Delay condone) being No.49 of 2011, whereby the delay of around 4 months and 8 days caused in filing Regular Appeal against the final decree and judgment dtd. 19/2/2011 passed by the Civil Judge Court at Sihori in RCS No.92 of 2003, has been rejected by the Appellate Court.

(2.) Mr.D.G. Brahambhatt, learned advocate appearing for and on behalf of the petitioners submitted that the Appellate Court should take pragmatic approach and not pedantic approach for condonation of delay and technical approach should be avoided and sufficient cause should be liberally construed to do substantial justice as in the facts of the present case, delay was not inordinate delay and the petitioners had sufficient cause for not preferring the appeal in a stipulated time. Thus, therefore, he submitted that the Appellate Court failed to appreciate the settled position of law on the issue of delay and without application of mind, the impugned order having been passed which required interference by this Court.

(3.) Mr.Sharma, learned advocate appearing for and on behalf of the respondents, vehemently opposed the petition and contended that no satisfactory explanation has been coming forth for the delay of 8 months and therefore, when the preliminary decree has not been challenged by the petitioners, the appeal against the final decree in eye of law would not maintainable. Thus, on merits, the matter having no any substance and therefore, the learned Appellate Court has rightly dismissed the application which does not call for any interference by this Court.