SANDIPBHAI RASIKLAL BHATT Vs. VINITBHAI KANTILAL SHAH

JUDGEMENT

(1.) THE present application has been preferred by the applicant-original defendant to condone the delay of 45 days caused in preferring the Appeal from Order challenging the order passed by the learned Chamber Judge, City Civil Court, Ahmedabad dated 11/02/2009 below Exhs. 15 and 16 in Civil Suit No. 29/2008.

(2.) THE application is opposed by Shri Chinmay Gandhi, learned advocate appearing on behalf of the respondent. It is submitted that as such the impugned order passed by the learned trial Court is already implemented and the applicant-original defendant has already paid some amount pursuant to the impugned order passed by the learned trial Court and thereafter when the balance amount was not paid by the applicant-original defendant, the respondent-original decree holder has filed the execution proceedings and, therefore, the present Appeal from Order has been preferred with a malafide intention.

(3.) HAVING heard the learned advocates appearing on behalf of the respective parties and cconsidering the averments made in the application, this Court is of the opinion that the delay of 45 days in preferring the Appeal from Order is to be condoned so as to give one opportunity to the applicant-original defendant to submit his case on merits rather than non-suiting the applicant-original defendant on the technical ground of delay. By condoning the delay, no prejudice will be caused to the respondent-original plaintiff as the Appeal from Order shall be heard on merits. However, on the other hand, if the delay is not condoned, the applicant-original defendant would be deprived of his right to consider the case on merits. Merely because some amount has been paid by the applicant-original defendant, pursuant to the impugned order, is no ground not to condone the delay. Even otherwise, considering the impugned order, this Court is of the opinion that there is a prima facie meritorious case in favour of the applicant-original defendant. Hence, the delay caused in preferring the Appeal from Order is required to be condoned.