[1] This Civil Application is filed under Section 5 of the Limitation Act to condone delay of 111 days occurred in filing Appeal from Order.
[2] It is submitted by Mr.Devang Nanavati, learned advocate appearing for the applicant that considering the averments made in the application, the application may be allowed.
[3] The application is opposed by Mr.Kapadia, learned advocate for respondent no.1. Reply is also filed by the respondent opposing the application. It is submitted by Mr.Kapadia that as per decision of this Court in the case of Paschim Gujarat Vij Company Ltd. v/s. Khemchand Nathabhai Gadhavi reported in 2011(2) GLH 90, the appeal is time barred and when appeal was presented, delay condonation application was not preferred and so in light of above decision, the application may be dismissed.
[4] Heard learned advocates for the respective parties. This Court is in agreement with the view taken by this Court in the case of Paschim Gujarat Vij Company Ltd. (supra) and as per this judgment if the appeal is preferred and objection is raised by the Office, then, it is incumbent upon the applicant to prefer delay condonation application within 15 days and if the application is preferred after 15 days, then the application is required to be rejected.
[5] In the present case, the appeal from order is preferred on 05.12.2011 and as Office has raised objection, immediately, the applicant has preferred delay condonation application within 3 days i.e. on 07.12.2011.
[6] In this facts and circumstances, the applicant has complied with Chapter
- V, Rule 67(i) of the Gujarat High Court Rules and so reliance placed by the learned advocate for the respondent on the decision in the case of Paschim Gujarat Vij Company Ltd. (supra) is not applicable, so far as present application is concerned.
[7] Taking into consideration averments made in the application particularly para 3 and 4 of the application, I am of the view that sufficient cause has been stated for not filing the appeal from order in time and hence, delay caused in filing the appeal from order is to be condoned and application is required to be allowed.
[8] For the reasons stated above, application is allowed. Delay caused in filing appeal from order is condoned. Rule is made absolute to the aforesaid extent.
[M.D.Shah, J.] satish Top