Point of Law - It is axiomatic that condonation of delay is a matter of discretion of court Section 5 of Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.

JUDGMENT :

1. By preferring this petition, petitioner has challenged the order dated 09.05.2018 passed by the learned 3rd Additional Senior Civil Judge, Gandhidham-Kutch in CMA No.56 of 2017 condoning the delay in preferring an application for restoration of the Special Civil Suit No.42 of 2000 under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC” for short)

2. The short facts to the leading of the filing of present petition may be summarized as under:

2.1 The respondent - original plaintiff filed Special Civil Suit No.42 of 2000 against the petitioner for recovery of a sum of Rs.52,87,00,000/- before the learned Senior Civil Judge, Gandhidham. The defendant appeared in the suit and filed his written statement and contested the suit. Issues were framed by the Trial Court on 25.01.2001 and 24.06.2005. An affidavit was submitted by the plaintiff through its officer on 30.04.2007. The suit could not progress further as time was sought by the plaintiff before the Court to keep its officer present for cross-examination uptill 01.10.2014 and right of evidence of the plaintiff was closed by the Court. The plaintiff was not remained present for its evidence and vide order dated 03.01.2015, the Trial Court dismissed the suit under Order 17 Rule 2 of the CPC. After about 1025 days, the plaintiff filed an application for restoration of the suit alongwith the delay application on 24.10.2017. The said application was contested by the petitioner by filing its detailed reply dated 16.04.2018 and objected such condonation of delay in filing restoration application. The Trial Court, vide its judgment and order dated 09.05.2018, allowed the delay application of the respondent/plaintiff in filing restoration application. The present petitioner, being dissatisfied with the order passed by learned 3rd Additional Senior Civil Judge, Gandhidham-Kutch in CMA No.56 of 2017 in Special Civil Suit No.42 of 2000 dated 09.05.2018, has approached this Court by filing this petition.

3. Heard Mr.Maulik J. Shelat, learned advocate for the petitioner and Mr.Mihir Thakore, learned Senior Advocate appearing with Mr.Gaurav Mathur, learned advocate for Singhi & Company for the respondent.

4. It is submitted by learned advocate for the petitioner that the Trial Court has committed an apparent error in condoning the delay of 1025 days in preferring the application for restoration of Special Civil Suit No.42 of 2000. It is further submitted that suit was filed in the year 2000 and affidavit in examination of chief was filed in the year 2007, but the plaintiff was unable to bring officer for cross-examination uptill 2014 which resulted in closing of its evidence and the same was not challenged before the Higher Courts. It is further submitted that considering the entire set of facts and attitude of the plaintiff company, pursuing high stake claim in Court of law, would not deserve any second inning. It is further submitted that the ground raised by the plaintiff that its officer, who was looking after suit in question, left company in the year 2014 and played ignorance about dismissal of suit which is deplorable and cannot be believed. It is further submitted that the plaintiff being a big organization and someone left company, then official record of such person would definitely maintain by the company which could have been brought it before the Trial Court. Bonafides of the plaintiff was not examined by the Trial Court. It is further submitted that advocate engaged by the plaintiff was very well aware about dismissal of the suit, who has communicated such decision to officer concerned then assuming without admitting that such officer had left company. Such a ground cannot be accepted by the Court. It is further submitted that the plaintiff was not pursuing its case sincerely and not remained vigilant and therefore, plaintiff is not entitled to get such delay condone on the ground that the plaintiff was remained unaware about proce