The main legal point established in the judgment is the need to prioritize hearing matters on their merits rather than dismissing them on mere technicalities.

JUDGMENT :

1. Rule.

2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

“A. The Hon’ble Court may be pleased to issue writ of certiorari and / or any other appropriate writ, direction and order to quash and set aside the order dated 31.12.2018 passed by Principle Senior Judge, Gir Somnath Veraval, and further be pleased to condone the delay of 9 days depositing the sum of Rs.2,500/- before the District Service Legal Authority.

B. Pending hearing and final disposal of the petition, Your Lordships be pleased to injunct the respondents herein from changing, altering or transfer either the possession and title of the suit property in any manner, and further be pleased to direct the respondents to maintain status quo with respect to the suit property.”

3. Heard learned advocate Mr. Pratik K. Khubchandani with learned advocate Mr. Dhaval D. Vyas for the petitioner.

3.1. Learned advocate for the petitioner contended that the learned Principal Senior Civil Judge, Gir Somanth Veraval passed the order on 31.12.2018, inter alia, dismissing the application filed by the petitioner to condone the delay caused in depositing costs of Rs. 2,500/- with the District Legal Service Authority, imposed while condoning delay in restoring Special Suit No. 59 of 2009.

3.2. It is further contended that the suit was at the stage of leading evidence, wherein the petitioner was informed by his advocate that on account of establishment of Principal District Court & Additional Court at Veraval during the year 2016, certain matters were in the process of being transferred and the next date of leading evidence in the suit would be informed to upon completion of the process of transfer.

3.3. It is further contended that matter was listed on 01.09.2016 for further evidence. At that time, neither petitioner nor his advocate remained present. Therefore, as a consequence, the suit came to be dismissed for non-prosecution vide order dated 01.09.2016.

3.4. It is further contended that the status of the suit proceeding from the advocate, the petitioner was informed that the suit came to be dismissed for default. Hence, Civil Misc. Application No. 2 of 2017 was filed for restoration of the suit along with an application under Section 5 was preferred.

3.5. It is contended that vide order dated 13.12.2018, the application for condonation of delay was allowed and suit was restored back to file on a condition that the petitioner would pay a sum of Rs.2,500/- before the District Legal Services Authority within 7 days.

3.6. It is further urged that the petitioner was unable to deposit the amount of Rs.2,500/- within stipulated time of 7 days. Therefore, the petitioner has preferred an application seeking condonation of delay of 9 days at Exh.9 in depositing the said amount, which came to be dismissed vide order dated 31.12.2018. Hence, this petition is filed.

3.7. Referring to the averments made in the petition, the learned advocate states that petitioner was ready to pay Rs.2,500/- as cost after 9 days in stead of 7 days, but the said request was turned down by the learned Trial Court.

4. Learned advocate for the petitioner has submitted that the application should not be rejected on the technical ground without giving an opportunity to show the cause.

4.1. Learned advocate for the petitioner has further submitted that the application filed seeking condonation of delay of 9 days in depositing the cost ought to have been liberally construed inasmuch as the learned Trial Judge ought to have appreciated the effect of rejecting the application would be to reject a good case at the threshold and cause injustice.

4.2. Learned advocate for the petitioner has also submitted that it is a bona fide mistake, and petitioner inadvertently failed to deposit the amount of cost as necessitated to pay within stipulated time.

4.3. Learned Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court