ORAL ORDER

Heard learned advocate for the petitioner.

2. By way of this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 24/06/2024 passed in CMA No.4 of 2024 by the learned 2nd Additional District Judge, Gir Somnath @ Una dismissing the application under Section 5 of the Limitation Act seeking condonation of delay of three years; four months and twenty- eight days caused in preferring the appeal against the judgment and decree dated 13/10/2020 passed in RCS No.149 of 2002.

3. The short facts of the case are that the suit was filed against the present petitioner seeking relief of removal of encroachment alleged to have been caused by the present petitioner. In the said suit, defendant no.2 appeared through Advocate and filed written statement; however rest of the defendant did not appear. Meanwhile, Advocate for defendant no.2 filed a pursis and retired himself from appearing in the matter and thus the proceedings culminated into decree in favour of the plaintiff. The Dharkhast was filed for execution of the decree whereupon the Court issued warrant. Meanwhile, the petitioner filed CMA No.4 of 2024 before the first appellate court seeking condonation of delay inter alia on the ground mentioned in the application which came to be dismissed and present petition is filed.

4. Learned advocate for the petitioner would submit that practically the suit is conducted ex-parte. He would submit that defendant no.2 has as such filed appearance, however the learned advocate representing defendant no.2 has never informed that he is not conducting the matter and therefore ex- parte decree came to be passed. He would submit that considering the principle of natural justice, the defendant no.2 should be heard before passing the judgment and decree. He would further submit that appellate court has passed total non- reasoned order without taking into consideration the reasons stated by the petitioner.

4.1 Upon making such submissions, he would submit to allow this petition.

5. Having heard the learned advocate for the petitioner, this court does not incline to entertain the present petition considering the gross delay i.e. three years; four months and twenty-eight days caused in preferring the appeal. The approach on the part of the defendant no.2 also requires to be seen that after the warrant is issued in the Darkhast proceedings, he rise from the slumber and reached to the Court to file the appeal. The fishy reasons stated in the application for condonation of delay, more particularly, paragraph 2, 5 and 6 thereof that defendant no.2 is the agriculturist and is not known to the law and since after filing of the suit, plaintiff would be withdrawn the suit however by not doing so, he obtained the illegal decree. It is also stated in the application that if the delay is not condoned; a great loss would be caused and legal right of the defendant no.2 would be jeopardized. It is further stated in the application that delay is required to be condoned in the case where such false order is passed whereby the right of the parties over the property got damaged.

6. Recently, the Hon’ble Apex Court in case of K.B.Lal (Krishna Bahadur Lal) Versus Gyanendra Pratap And Others reported in 2024 (4) SCR 616, after referring to the judgment of the Hon’ble Apex Court in case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Others, (2013) 12 SCC 649, held followings:-

“10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant ( See Majji Sannemma @ Sanyasirao v. Reddy Sridevi and Others (2021) 18 SCC 384 ). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay ( See P.K. Ramachandran vs. State of Kerala and Anr., (1997) 7 S