PREKSHA DHYAN ACADEMY TRUST Vs. NIMISHBHAI BHARAT PANCHAL

JUDGEMENT

(1.) PRESENT petition under Article 227 of the Constitution of India is filed by the petitioner original defendant challenging the order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court, Gandhinagar dated 11/12/2007 passed in Civil Miscellaneous Appeal No. 51 of 2007 in not condoning the delay of 64 days in preferring the appeal. Shri M. K. Patel, learned advocate appearing for the respondent-original plaintiff has submitted that in the appeal as the petitioner has challenged the judgment and decree passed by the learned trial Court dated 5/12/2003 and even the Restoration Application was submitted by the petitioner on 26/6/2006 the delay would not be 64 days but more than two and half years.

(2.) IT appears from the impugned order that learned trial Court has considered the delay from the order dated 18/10/2007 which was rejecting the Restoration Application and has not considered the fact that in the appeal, the petitioner has challenged the judgment and decree dated 5/12/2003. Accordingly, the delay would be not 64 days but it is more than two and half years. Shri B. S. Brahambhatt, learned advocate for the petitioner would be submitting an appropriate application for condonation of delay afresh explanation of delay right from 5/12/2003 as he has challenged the judgment and decree dated 5/12/2003. As and when, such an application is made, same shall be decided and disposed of by the learned trial Court in accordance with law and on merits and without in any way being influenced by the impugned order dated 11/12/2007 passed in Civil Miscellaneous Appeal No. 51 of 2007.

(3.) WITH this present Special Civil Application is disposed of. It is observed that this Court has not expressed any opinion on merits and delay caused in preferring the appeal against the judgment and decree to be condoned or not. It will be ultimately for the trial Court to consider the same in accordance with law and considering the grounds pleaded in the application.