ORAL JUDGMENT

1. Rule. Learned advocate Mr. Y. N. Ravani with learned advocate Mr. Raju K. Kothari for the respondent. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

2. This petition under Article 227 of the Constitution of India is filed by the petitioner praying for to quash and set aside the judgment and order dated 01.08.2018 passed by the learned 3rd Additional District Judge, Gandhidham – Kachchh in Civil Misc. Application No. 39 of 2016 and to condone the delay of 151 days in filing the appeal.

3. Heard, learned advocate Mr. Tirth Bhatt for the petitioner and learned advocate Mr. Y. N. Ravani with learned advocate Mr.

Raju K. Kothari for the respondent.

3.1 The learned advocate for the petitioner submits that the petitioner wanted to challenge the judgment and decree passed against him by filing the appeal, however, as there was delay in filing the appeal, the petitioner preferred an application for condonation of delay, however, the said application came to be rejected by the impugned order and hence, the petitioner is before this Court by this writ petition. The learned advocate for the petitioner submitted that during the time in question, criminal proceedings were going on against the petitioner and the petitioner was in judicial custody and/or in traumatic condition due to such proceedings. He further submitted that the suit in question was pending since 1994 and the petitioner did not know about the judgment and decree passed in the said suit in the year 2016. Accordingly, in the said facts and circumstances of the case, minor delay has occurred in filing the appeal and accordingly, he urged that this petition may be allowed and delay caused in filing the appeal may be condoned.

3.2 Per contra, learned advocate Mr. Ravani for the respondent, while heavily opposing the present petition, submitted that in general, delay may be condoned where sufÏcient cause is shown and correct facts are mentioned, however, the present case is an exception thereto, where such is not the case. The petitioner was very much available and he could file the appeal in time. Further, there is suppression of material facts and on that count only, this petition may be dismissed. He submitted that the petitioner had already appointed a power of attorney to defend his cause. Further, when the suit was decreed, the petitioner was already bailed out. Accordingly, when the petitioner has not come with clean hands before this Court, present petition deserves no consideration and it is urged to be dismissed. In support, he places reliance on a decision of the Apex Court in Nazmabegam Noormohammed Rangrej @ Nazmabanu Fahimbhai v.

State of Gujarat and Others, 2013(1) GLH (U.J.) 1.

4. Regard being had to the submissions made and considering the material placed on record, it appears that the respondent herein had filed a suit being Regular Civil Suit No. 87 of 1994 before the learned Additional Senior Civil Judge, Gandhidham (Kachchh), which came to be allowed vide judgment and decree dated 17.03.2016. Against the said judgment and decree, the petitioner wanted to prefer an appeal, however, in preferring the appeal, there was a delay of about 151 days and for condonation of such delay, he filed Misc. Civil Application No. 39 of 2016, which came to be rejected vide impugned judgment and order dated 01.08.2018 passed by the learned 3rd Additional District Judge, Gandhidham-Kachchh, being aggrieved of which, the petitioner is before this Court by this petition.

4.1 It is contended by the learned advocate for the petitioner that the petitioner was in judicial custody and/or in traumatic condition due to the criminal proceedings going on against him and hence, he did not know about the result of the suit, which was pending since 1994 and accordingly, minor delay of 151 days has occurred in filing the appeal thereagainst. Whereas, the learned advocate for the respondent has resisted such applica