1. Learned advocate Mr. Y. V. Vaghela has drawn the attention of the Court to Page Nos. 87, 88 and 89, more particularly the grounds narrated in the same and submitted that the petitioners herein have narrated the grounds for delay at length before the learned Court below and the learned Court below has not considered the same and without giving any opportunity, the learned Court below has dismissed the said delay condonation application for want of prosecution. The learned advocate for the petitioners has then submitted that for condonation of delay, sufficient cause has been shown by the petitioners herein, which are at Page Nos. 87, 88 and 89, accordingly, the petitioners herein have challenged the impugned order by way of preferring the present Special Civil Application.
2. The learned advocate for the petitioners has then submitted that so far as merits of the case before the learned trial Court are concerned, the petitioners herein have a very good prima facie case in their favour and the suit itself was not maintainable and therefore also, the delay ought to have been condoned by the learned Court below and the learned Appellate Court has erred in not considering the said important factor, which is in favour of the petitioners.
3. I have carefully gone through the averments made in the present petition and considered the submissions made by the learned advocate for the petitioners. I have carefully gone through the order dated 03/08/2012 passed by the learned Principal District Judge, Jamnagar in Civil Misc. Application No. 136 of 2009. Referring the conduct of the learned Assistant Government Pleader of the concerned Court below, the learned Judge has specifically observed that in the Regular Civil Suit No. 183 of 2000, which was disposed of by the concerned Court on 16/06/2008, the same learned Assistant Government Pleader was representing the same on behalf of the petitioners original defendants. It is not under dispute that the said suit was tried in presence of the learned advocates for the parties and also was decided on merits after giving full opportunity. It is pertinent to note that after the judgment and decree passed in the said Regular Civil Suit No. 183 of 2000, the petitioners herein, nine months thereafter, has applied for obtaining Certified Copy and thereafter, also, Civil Misc. Application No. 136 of 2009 has been filed for condonation of delay of 01 year, 01 month and 08 days. It is pertinent to note that this Civil Misc. Application No. 136 of 2009 has been filed on 25/08/2009 and on the same day, the petitioners herein have asked for the interim relief, which was, as such, never pressed by the petitioners herein and inspite of the fact that no interim relief was there in the said Civil Misc. Application No. 136 of 2009, the petitioners herein was prolonging the matter and the fruits of the decree, which were to be enjoyed by the respondent original plaintiff herein was unable to get the same because of the negligent attitude and negligent conduct of the concerned learned Assistant Government Pleader, which has been reflected at length in the impugned order dated 03/08/2012, passed in Civil Misc. Application No. 136 of 2009 by the learned Principal District Judge, Jamnagar. It is important to note that on 31/03/2012 time which was sought for was granted and thereafter also for four months, the learned Assistant Government Pleader was not in a position to proceed with the said Civil Misc. Application No. 136 of 2009. On 16/07/2012, an application was tendered for adjournment of the said Civil Misc. Application No. 136 of 2009 and as per the choice of the learned Assistant Government Pleader, date i.e. 03/08/2012 was given by the learned trial Court. It is important to note that on 03/08/2012, the concerned learned Assistant Government Pleader had neither remained present nor had he applied for time and accordingly, the learned Court below has passed the order narrating the negligent attitude of the learned Assistant Government Pleader. The learned advocate for the petitioners has drawn the attention of the Court as referred hereinabove that the petitioners herein have a very good prima facie case and as such, the concerned Regular Civil Suit No. 183 of 2000, was not maintainable but it is the fact that, on merits, it was decided and it was decreed. Thereafter, considering the conduct and negligent attitude of the learned Assistant Government Pleader and after considering the ratio laid down in the decision rendered by the Hon ble the Apex Court in Office of the Chief Post Master General and Others Vs. Living Media India Ltd. and Another, reported in (2012) 3 SCC 563 and considering the above-referred circumstances as a whole, I am of the view that the impugned order passed by the learned Principal District Judge, Jamngar, is just and proper. There appears no perversity or arbitrariness in the same and accordingly, I do not find any substance in the present Special Civil Application, the same is accordingly dismissed.
[ G. B. Shah, J. ] hiren Page 5 of 5