The main legal point established is the application of the principles of sufficient cause and the liberal approach in delay condonation cases, emphasizing the need to advance substantial justice and strike a balance between the rights of the parties.

JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. This petition is filed by the petitioner under Article 227 of the Constitution of India, with the following prayers:

“(a) This Hon’ble Court be pleased to quash and set aside the impugned order dated 10.05.2018 passed by the learned 2nd Additional District Judge, Gandhidham-Kutch in Civil Misc. Application No.20 of 2016;

(b) Pending admission, hearing and final disposal of the petition, this Hon’ble Court be pleased to stay the execution, operation and implementation of the impugned order dated 10.05.2018 passed by the learned 2nd Additional District Judge, Gandhidham-Kutch in Civil Misc. Application No.20 of 2016.”

2. The brief facts for the case are that the petitioner is the original-plaintiff, who had preferred a Special Civil Suit No.18 of 2012 before the learned Principal Senior Judge (S.D.), Kutch seeking recovery of sum of Rs.7,81,362/- with interest at the rate of 18%. That, this suit came to be dismissed by the trial court vide judgment and order dated 14.09.2016 mainly on the ground that plaintiff failed to establish its case and the documents produced by the plaintiff were not proved. It is further contended in the petition that the plaintiff filed an appeal before the District Court with 39 days delay and the application for condonation of delay being Civil Misc. Application No.20 of 2016 was preferred. It is also contended in the petition that in the application, the learned District Judge vide order dated 16.01.2017 issued notice and thereafter, on various dates, application could not be heard as notice could not be served upon the respondents- defendants. That, the address of the defendants was the same as stated in the suit and on which summons of the suit were served. That, however, notice issued by the appellate Court could not be served and though the petitioner had paid the process, notice did not come back after service for a long time and various adjournments were given to await service of notice. That, the application was taken up for hearing by learned 2nd Additional District Judge, Gandhidham- Kutch vide an order dated 10.05.2018, dismissed the application for condonation of delay on the ground that for a long time, the respondents have not be served and therefore, dismissed the same presuming that the petitioner has no interest in pursuing the matter.

3. Heard learned advocate Mr. Dipen Desai for the petitioner. Though duly served and sufficient time is given to the respondents but none remained present for the respondents.

4. Rule.

5. Learned advocate Mr. Dipen Desai for the petitioner has urged that in the present case, there is hardly 39 days delay caused in preferring the appeal and the delay is caused due to long absence of the learned advocate for the petitioner.

6. This Court has considered the averments made in the petition and arguments advanced by the learned advocate for the petitioner and also considered the judgments of the Hon’ble Supreme Court in Indian Oil Corporation Ltd. and Ors. vs. Subrata Borah Chowlek and Ors. (12.11.2010 – SC) MANU/SC/1252/2010 has observed as under:

“7. Having heard the Learned Counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (See: Shakuntala Devi Jain v. Kuntal Kumari and Ors. MANU/SC/0335/1968 : (1969) 1 SCR 1006; The State of West Bengal v. The Administrator, Howrah Municipality and Ors. MANU/SC/0534/1971 : (1972) 1 SCC 366; N. Balakrishnan v. M. Krishnamurthy MANU/SC/0573/1998 : (1998) 7 SCC 123; Sital Prasad Saxena v. Union of India and Ors. MANU/SC/0294/1984 :