MANUBHAI SARDARSING JADEJA Vs. BHUPENDRA JIVANLAL MISTRY

JUDGEMENT

(1.) The entire approach of the learned Judge is against the principles which should govern the approach to be made in a case where the delay is required to be condoned. It is now well-settled that the principle to be borne in mind in such cases is that the consideration of doing substantial justice is the paramount consideration. It is also well-settled that unless it can be said that the defaulting party had abandoned or given up, by its conduct or otherwise, its right to agitate the matter, it cannot be said that there was any such gross negligence or inaction on its part as to disentitle it to ask for condonation of delay. The present was a case in which possession was sought by the plaintiff of a residential property and it was the version of the defendant from the very beginning that he was occupying the properly as a tenant. In such a case, the defendant would normally remain present before the court. The defendant's version, corroborated by the affidavits of his advocate and clerk, could not, therefore, have been brushed aside. At the most there was some negligence on the part of the advocate and his clerk, but it cannot be said that there was negligence, let alone gross negligence, on the part of the defendant. Once it is found that the defendant was not aware of the hearing of the suit, through no fault of his, it must also be held that he was unaware of the passing of the decree till 14-5-1983 and there was sufficient cause for condoning the delay.