Point of law: The litigant does not stand to benefit by approaching the Court of law with an appropriate application at a belated stage. The legislature has in this, as in every civilized country that has ever existed, though fit to prescribe certain limitations of time after which persons may suppose themselves to be in peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain.

ORDER :

1. Present petitioner has challenged the judgement and order dated 1st October, 2014 passed by the learned 4th Additional District Judge, Khambhalia, Dist. Jamnagar in Civil Misc. Application No. 45 of 2011 whereby, the application for condonation of delay of 6 years 5 months and 20 days in filing of Regular Appeal against the judgment and decree on 29th January, 2005 passed by the learned Civil Judge (J.D.), Jam-Jodhpur in Regular Civil Suit No. 11 of 2003 was dismissed.

2. Heard learned advocates for the respective parties.

3. Learned advocate for the petitioner submits that the petitioner had filed Civil Suit against the respondent i.e. Regular Civil Suit No. 120 of 2001 before the Court of learned Civil Judge, Jam-Jodhpur wherein, an application for interim injunction filed below exh.5, which was granted in favour of the petitioner. It is further submitted that after two years of filing the suit by the petitioner, another Regular Civil Suit No. 11 of 2003 was filed by the respondent praying for cancellation of the Sale Agreement dated 20th April, 2000 and also recovery of possession of the subject land from the petitioner. Both the suits were consolidated by the Court below vide exh. 32. That, Civil Suit No. 120 of 2001 filed by petitioner was dismissed for want of prosecution and Regular Civil Suit No. 11 of 2003 filed by the respondent was proceeded by the Court below. That, the respondent, who is practicing advocate, malafidely engaged an advocate who represented the present petitioner in the suit. That, present petitioner never engaged some another advocate to appear in Regular Civil Suit No. 11 of 2003. That, decree was passed by the Court below in favour of the respondent. However, the petitioner was not aware of the judgement and decree passed by the Court below on 29th January, 2005. That, for the first time the petitioner came to know on 22nd July, 2011 in respect of ex-parte decree passed in favour of the respondent when execution petition was filed by him. That, delay condonation application was preferred by the present petitioner against the judgment and decree dated 29th January, 2005 passed in Regular Civil Suit No. 11 of 2003. On 29th August, 2011, Learned Judge, without considering the reasons, erroneously dismissed the application praying for condonation of delay vide order dated 1st October, 2014. That, sufficient explanation was made by the petitioner in respect of unaware with the proceedings i.e. judgement and decree passed against the petitioner by the Court below in Regular Civil Suit No. 11 of 2003. That, the petitioner cannot be suffered for want of challenging the impugned judgement and decree by refusing to condone the delay. That, the petitioner has prima facie case and is likely to be succeeded if permission for challenging the judgment and decree is given to him. That, sufficient cause is made out by the petitioner before the Court below to condone the delay in challenging the judgement and decree passed against him. That, an order passed by the trial Court is required to be quashed and set aside. Hence, it was requested by learned advocate for the petitioner to allow this petition and quash and set aside the judgement and order dated 1.10.2014 passed by learned 4th Additional Dist. Judge, Khambhalia in Civil Misc. Application No. 45 of 2011.

4. Per contra, learned advocate appearing for the respondent vehemently opposed the submissions made by the petitioner and submitted that both the suits were consolidated by the learned Civil Court by passing an order below Exh. 32. That, Regular Civil Suit No.120 of 2001 came to be dismissed for default vide order dated 21st August, 2004. That, Regular Civil Suit No. 11 of 2003 preferred by the respondent was proceeded and vide judgement and decree dated 29th January, 2005 it was partly allowed by the Civil Court. That, even at the time of pronouncement of the judgment, an advocate of the petitioner was present and he had put an endorsement of ‘seen’