Heard learned Advocate Ms. P.J. Joshi for the petitioner.
The challenge in this Writ Petition under Articles 226 and 227 of the Constitution of India is the order passed by the Court of the learned Additional District Judge and Presiding Officer, Fast Track Court, Amreli dated 05.04.2010 by which the inordinate delay of eight (8) years in filing the appeal was not condoned by assigning the reasons.
It is say of the learned Advocate for the petitioner that the decree passed in Regular Civil Suit No.113/1999 by which the learned Additional Civil Judge, Amreli dated 30.08.2001 for which certified copy was not available to the illiterate petitioner and supporting evidence of the will was also not available and therefore, the delay has occurred. Inspite of her best efforts to trace out the copy of the will and mistake occurred in the name of Hansaben Nagindas Sanghvi and other relevant aspects, the above delay has taken place. Meanwhile, Special Civil Application No.12153/2009 was filed before this Court which came to be withdrawn with a view to avail an alternative remedy in accordance with law and therefore, the Trial Court ought to have considered the delay from the dismissal of Special Civil Application No.12153/2009 on 23.11.2009 and therefore, the delay was negligible.
On perusal of the record and the order impugned, it is revealed that the judgment and decree in RCS was passed as early as on 30.08.2001 and barring the non-availability of the copy of the will, illiteracy and ignorance, no other cause much less a sufficient cause is shown before the learned Judge.
In the above circumstances, not condoning the delay of about eight years by the Court below cannot be said to be in any manner illegal exercise of jurisdiction warranting any interference by this Court under Articles 226 and 227 of the Constitution of India.
In view of the above, the petition is devoid of merits and stands rejected. Notice discharged.
Sd/-
(Anant S. Dave, J.) Caroline Top