This writ petition has been preferred by the petitioner under Article 227 of the Constitution of India, challenging the order of the trial court where by instead of considering the request of condoning the delay of 20 days in preferring the petition, the court has decided the matter on merit.
Learned advocate appearing for the petitioner has urged that the respondent had preferred Hindu Marriage petition 06 of 2010 and had secured ex-parte decree in the said petition.
On having come to know about the same, an application was moved being Civil Misc. application no. 15 of 2011 wherein on 12 September 2011, the learned Additional Senior Civil Judge, Palanpur, rejected the same on merits instead of considering merely question of condonation of delay.
On having heard learned advocate and on having considered the fact that substantive issues are required to be adjudicated between the parties as the challenge was made to the ex-parte decree passed in favour of the respondent in HMP no. 6 of 2010.
The court has severely committed an error in not condoning the delay and instead deciding the matter on merit, therefore, this order requires to be quashed and set-aside.
It will be worthwhile to note that the courts are required to be liberal when sufficient cause is shown while entertaining the application for condonation of delay. Rather than resorting to technicalities, substantive justice is required to be upheld. Here the petitioner has aptly explained delay of 20 days. Merit of the matter is a subsequent stage to be considered.
Resultantly, this petition is allowed. Delay of 20 days occurred in preferring the application challenging the ex parte decree is condoned. Writ petition stands disposed of in the above terms.
Direct service is permitted.
{Ms.
Sonia Gokani, J.} Prakash* Top