The petitioner has filed this petition under Article 227 of the Constitution of India challenging the order dated 31.03.2012 passed by the learned Additional District Judge, Khambalia in Civil Misc. Application No.62 of 2011 below Exh.13 by which delay of 72 days in filing appeal against the order passed Exh.5 dated 06.09.2011 in Regular Civil Suit No.18 of 2011, came to be condoned.
2. Learned advocate for the petitioner-original plaintiff submits that the application for condonation delay preferred by the respondent is nothing but falsehood and respondent had made false statement that he was abroad and without looking into the veracity of the said statement, the court below has believed the said cause to be sufficient cause for condoning delay in filing the appeal. Learned advocate further submits that the respondent has made false statement on oath and mislead the appellate court to believe the same to be sufficient cause for condoning delay in filing the appeal. He, therefore, submits that the impugned order is required to be quashed and set aside.
3. Learned advocate for the respondent No.1 would submit that the respondent has not suppressed any material facts from the appellate court and the respondent came to know about status of the suit and passing of the order in last week of November. It is further submitted that in earlier proceedings of Civil Revision Application, he was represented by his power of attorney, which came to be disposed of on 15.12.2011. In view of the above, it cannot be said that any illegality is committed by the court below in condoning delay of 72 days without probing in detail about allegation as to whether the respondent No.1 was abroad and had knowledge about order below Exh.5 passed on 06.09.2011 or not. It is further submitted that condonation of delay of about 72 days by the court cannot be said to be contrary to law and otherwise also the matter needs to be contested on merit and not on technicality. During the course of arguments, it is brought to the notice of this court that the appeal is finally heard and kept for order.
4. Having heard learned advocates for the parties and considering the overall facts and circumstances of the case, I am of the considered opinion that the learned trial Judge has not committed any error much less jurisdictional error in passing the impugned order. Hence, there is no substance in the present petition to exercise powers under Article 227 of the Constitution of India.
In view of the above, this petition is rejected.
Notice is discharged.
[Anant S. Dave, J.] *pvv Top