IMPORTANT POINT
The court emphasized that applications for condonation of delay should be decided on merits, prioritizing substantial justice over technicalities, especially when the delay is not due to negligence.

JUDGMENT :

1. Rule. Learned advocate appearing for the respondent no.1 waives service of rule.

2. By filing instant writ petition under Article 227 of the Constitution of India, under Section 5 of the Limitation Act and under Order XLI, Rule 3A of the Code of Civil Procedure, 1908, the writ petitioner has challenge the order dated 19.03.2024 passed by the learned Principal District Judge, Botad in Civil Misc. Application No.9 of 2024, whereby the application preferred by the petitioner for condonation of delay caused in preferring Civil Misc. Application has been rejected.

3. Heard learned advocate, Mr. Rajabhai Gogda for the petitioner and learned advocate, Mr. Nisarg Shah for the respondent no.4.

4. The brief facts leading to the filing of the present application are as under,

4.1 The respondent no.1 herein had filed Regular Civil Suit No.14/2010 against the petitioner herein before the court of learned Principal Civil Judge, Gadhada inter alia praying for recovery of the license fees and/or rent.

4.2 On filing of the suit, notice was issued, which was eventually served upon the petitioner and in pursuance thereto, the petitioner had appeared through advocate and filed his written statement.

4.3 Thereafter, the suit was proceeded further and both the parties had led their oral as well as documentary evidence.

4.4 Ultimately at the end of trial, learned Civil Judge, Gadhada, by judgment and order dated 30.12.2021, was pleased to allow the said suit in favour of the respondents – original plaintiffs and decree thereof came to be drawn on 03.01.2023.

4.5 However it is the case of the petitioner that the petitioner was not aware about passing of the judgment and order in the suit preferred by the respondents and it is only when the notice came to be issued upon them pursuant to filing of the Execution Petition, the petitioner came to know about the same and on service of the notice, the petitioner made inquiry and, thereafter, applied for certified copy on 02.02.2024 and on receipt of the certified copies, the petitioner had immediately filed Civil Misc. Appeal challenging the judgment and order passed in suit.

4.6 However as there was delay of 371 days caused in preferring the said appeal, separate application for condonation of delay being Civil Misc. Application No.9/2024 had been filed explaining the delay, however without properly considering the facts of the case, the learned Principal District Judge, Botad, by impugned order dated 19.03.2024, reject the said delay application.

5. Learned advocate, Mr. Gogda submitted that as stated above, suit was preferred by the respondents inter alia praying for recovery of the licence fee/rent, which had been allowed in favour of the respondents but the said fact was not well within the knowledge of the petitioner and it is only when the notice in the execution proceeding had been served upon him, the passing of decree came to the knowledge of the petitioner and immediately thereafter, inquiry was made and certified copies were applied and, thereafter, appeal has been preferred before the learned Appellate Court and as there was delay in preferring the said appeal, an application for condonation of delay was also preferred, which was rejected by impugned order. Learned advocate submitted that however at the time of passing impugned order rejecting an application for condonation of delay, the learned Judge has observed that the applicant is a huge company having sufficient manpower and machinery and with such assistance cannot be expected to sit silent for almost 371 days in preferring appeal. Learned advocate submitted that it is also observed that the applicant has not provided any details as to on which date, the applicant came to know about the judgment and order passed in the suit, therefore, the grounds mentioned in the application cannot be considered and rather it is improbable to believe that the applicant was not aware about the judgment and order and subsequent decree drawn in the sui