RAMBHAI JIVABHAI PARMAR DECEASED THRO HEIRS KADEVIBEN Vs. PUNJABHAI RUDABHAI SAGAR DECEASED THRO HEIRS SAGAR

JUDGEMENT

(1.) HEARD. learned advocate for the petitioner and Shri Vimal Patel, learned advocate for the respondents. It is reported that respondent No. 1 has expired, however, her heirs are already on record.

(2.) BY way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and / or order quashing and setting aside the order passed by the learned Presiding Officer,fast Track Court, No. 1 Viramgam dated 16. 5. 2008 passed in Civil Miscellaneous Appeal No. 2 of 2008 in dismissing the said application by not condoning the delay in preferring the Restoration Application to restore Regular Civil Suit No. 7 of 2002.

(3.) HAVING heard the learned advocates for the respective parties and considering the averments made in the application below Exh. 1 i. e. Civil Miscellaneous Appeal No. 2 of 2008 and considering the catena of decisions of the Hon'ble Supreme Court as well as this Court taking the view that normally the delay should be condoned and a liberal view should be taken while construing the sufficient cause, it appears that the learned trial Court has committed an error in not condoning the delay in preferring the restoration application. If the delay is condoned, in that case, restoration application is required to be heard on merits and the respondents would be given an ample opportunity to submit the case on merits and oppose the restoration application, however, if the delay is not condoned, the applicant would not be in a position to submit the case on merits.