ORAL ORDER

By preferring present petition under Article 226 and 227 of the Constitution of India, petitioner has prayed to quash and set aside the order dated 19th July 2021 passed by the learned 5th Additional District Judge, Kachchh at Bhuj in CMA No. 45 of 2020 dismissing the application for condonation of delay filed under Section 5 of the Limitation Act 1963 praying to condone to delay of 3 years 6 months and 10 days caused in filing an application under Section 41 Rule 19 of the Code of Civil Procedure (Hereinafter referred to as “the Code”) against the order dated 17th March 2017 passed by the learned 2nd Additional District Judge, Bhuj-Kachchh in Regular Civil Appeal No. 48 of 2008.

Considering the issue of dismissing application for condonation of delay of 3 years 6 months and 10 days under Section 5 of the Limitation Act 1963 caused in filing an application under Order 41 Rule 19 of the Code, this court deems fit not to issue notice to the respondent.

Heard learned advocate for the petitioner.

It was submitted by learned advocate for the petitioner that Special Civil Suit No. 86 of 2003 was filed by the petitioner before the court of learned Principal Senior Civil Judge, Kachchh for recovery of an amount as prayed in the suit, which was dismissed vide judgment and order dated 26.09.2007. It was further submitted that against the said order, Regular Civil Appeal No. 48 of 2008 was preferred before the learned District Court, Kachchh, which was also dismissed for default under Order 41 Rule 17 of the Code vide order dated 17th March 2017 by learned 2nd Additional District Judge, Bhuj-Kachchh . That, the petitioner came to know on 9th December 2019 when respondent herein addressed a letter to the petitioner stating that Regular Civil Appeal No. 48 of 2008 was dismissed for default, and therefore, petitioner made an inquiry and preferred Civil Misc. Application No. 45 of 2020 before the court of learned Principal District Judge, Bhuj at Kachchh on 26th October 2020 and prayed to condone the delay in filing the restoration application for restoring Regular Civil Application No. 48 of 2008. That, the said application ie.

CMA No. 45 of 2020 was dismissed learned District Judge vide order dated 24th August 2021 illegally and erroneously. That, the petitioner was never informed by the advocate, who was engaged before the District Court, and therefore, the petitioner could not remain present. That, the party should not suffer due to mistake on the part of the learned advocate. It was further submitted that when the petitioner made an inquiry, he came to know that the said advocate was not keeping well at the relevant point of time and he was passed away in the year 2019. It was further submitted that petitioner being a public company, dues of the petitioner cannot be frustrated by dismissing the appeal preferred by the petitioner. It was further submitted that the cost may be awarded to the respondent. In support of his arguments, learned advocate for the petitioner has placed his reliance in 2007(3) GLH 625 and

2009JX(Guj.)692 and requested to allow present petition. Having heard learned advocate for the petitioner and considering the documents produced on record, it appears that as against the judgment and decree passed in Regular Civil Suit No. 86 of 2003, Regular Civil Appeal No. 48 of 2008 was filed by the petitioner before the learned District Court, Kachchh at Bhuj. As none was appeared before the District Court, Kachchh in Regular Civil Appeal No. 48 of 2008, learned 2nd Additional District Judge, Kachchh vide order dated 17.03.2017, dismissed the appeal for default and disposed of. It appears that respondent herein wrote a letter on 9th December 2019 addressing to DE, PGVCL, Sub Division, Ravapar to refund the amount deposited by him. It is also disclosed in the letter that the appeal preferred by the petitioner ie., Regular Civil Appeal No. 48 of 2008 was dismissed. It is not in dispute that petitioner was represented by