NAGINBHAI BHAILAL BHOI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS is an application for condonation of delay of 556 days that has occasioned in preferring Misc. Civil Application Stamp no. 1310 of 2008 for review and or modification of the order dated 23-8-2006 passed in Misc. Civil Application for restoration no. 2067 of 2006 by the Court ( Coram : B. J. Shethna and M. D. Shah,jj.) wherein one of us was ( Coram: M. D. Shah,j. ).

(2.) THE said order dated 23-8-2006 is reproduced herebelow for ready reference: the Applicant has filed this MCA for restoring the above MCA (ST) No. 3315/05 which stood dismissed as per the conditional order dated 21. 3. 2006. The above MCA (St) No. 3315/05 was filed for restoring the above main Special Civil Application No. 7653 of 1992 which was earlier dismissed for default on 8. 3. 2004 by the Division Bench of this Court and after it was restored again it was dismissed for default by another Division Bench on 16. 11. 2005. However, the said MCA was in objection, therefore, it was given Stamp Number, being MCA (st) No. 3315/05. For removal of Office Objection when it was placed before brother D. H. Waghela, J. on 21. 3. 2006, the time was granted upto 4. 4. 2006 for removing the office objections. However, it was made clear that if the Office objections are not removed by that time then the matter will stand dismissed for non-prosecution. As per order dated 21. 3. 2006 the Office Objections were required to be removed on or before 4. 4. 2006. Admittedly, the applicant failed to remove the Office Objections by 4. 4. 2006. Therefore, said MCA (St) No. 3315/05 stood dismissed for non-prosecution. For restoring the above MCA (st) No. 3315/05 the present application is filed on 3. 5. 2006 which is circulated only today and placed for orders. Shri Yagnik submitted that it was his mistake that the Office Objections could not be removed because of lack of communication between him and his Clerk. He, therefore, requested to restore the above MCA (St) No. 3315/05 at its original number. He also submitted that if the above MCA is restored then he will remove the Office Objections within one week. 5. Considering the earlier orders passed in above main writ petition and the order dated 21. 3. 2006 passed by brother D. H. Waghela, J. in MCA (St) No. 3315/05, we are of the considered opinion that the prayer made in this Application cannot be granted. If such prayer is granted then the sanctity of passing conditional order would be lost. In view of the above, this Application is dismissed. " 2. We have heard the learned Counsel appearing for the parties.

(3.) LEARNED Counsel Mr. Yagnik for the applicant submitted that the applicant was almost bed ridden for last more than three years due to massive cardiac arrest suffered by him in the backdrop of the fact that he is a senior citizen. According to the learned Counsel, besides that the applicant is also suffering from many other ailments; that he had lost all hopes to pursue the litigation after the impugned order was passed; that it is after he became a bit normal he decided to pursue the matter again on account of which the delay has been caused in filing the MCA for review and or modiciation. The learned Counsel has therefore prayed that considering these circumstances, the delay as aforesaid requires to be condoned and the application deserves to be allowed.