DILIPSINH PRAVINSINH Vs. SUVINDHA BUILDERS

JUDGEMENT

(1.) This is an application under Sec. 5 of Indian Limitation Act praying for condonation of delay caused in preferring an appeal against the order passed below application exh. 5 passed by Id. Civil- Judge (S.D.), Ahmedabad (Rural) dated 17.10.2001. The operative part-of the order which the applicants intend to challenge is of prohibitory nature passed on merits and that too in absence of any objections to the application exh.5 preferred under 0.39 R.I & 2 of Civil Procedure Code (CPC for short). I would like to quote the operative part of the order for convenience :

(2.) The applicants are original defendant Nos, 1 & 2 in the above-said civil suit and it is contended that delay of 526 days caused in preferring appeal for the reasons narrated in the application should be condoned. It is, inter alia, contended that they have already instituted one suit being Regular Civil Suit No. 165/2000 for injunction in the Court of Ld. Civil Judge (J.D.), Ahmedabad (Rural) wherein the Ld. Judge has granted ad-interim injunction as applicants were apprehending the forcible dispossession of the land referred to in Special Civil Suit No. 81/2001. The main ground canvassed by the applicants is that they came to know about the judgment and order passed below exh. 5 only when it was pointed out by the other side while resisting the injunction application in RCS No. 165/ 2000. It, is averred that above-quoted prohibitory order dated 17.10.2001 came to be passed when their Advocate was not present and he remained absent during the course of hearing of the said application exh.5. It is further contended that even after passing of the impugned order, the applicants were not informed by their Advocate till the date on which they came to know about the order in the proceedings in RCS No. 165/3000.

(3.) It has been argued by Ld. Sr. Counsel Mr. Y.N. Oza appearing for Ld. counsel Mr.J.C.Vyas for the applicants that the applicants have asserted their civil rights in RCS No, 165/2000 and still they want to assert the said right in resisting the suit as well as application exh.5 the contesting respondents, applicants should not be thrown out but for some negligence on the part of their Advocate. It is argued that cause pleaded for delay is sufficient cause and for the reasons beyond control which prevented the applicants in preferring the appeal in prescribed period of limitation, application for condonation of delay should be allowed, placing reliance on some decisions, it is contended that delay of even very long period can be condoned and, therefore, the present application should be allowed.