IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 5058 of 2025 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI ==========================================================

Approved for Reporting Yes No ==========================================================

RAMANBHAI KJHALPABHAI RATHOD Versus PAVITABEN WD/O NARANBHAI DAHYABHAI MAHYAVANSHI ==========================================================

Appearance:

MR RATHIN P RAVAL(5013) for the Petitioner(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 09/03/2026

JUDGMENT

1. Heard learned advocate Mr. Rathin Raval for the petitioner. Though served, none appeared for the respondent/s. Perused the record.

2. By way of this petition, under Article 227 of the Constitution of India, 1950, the petitioner has prayed to quash and set aside the order dated 24.2.2025 passed by the learned 3^rd Additional District Court, Valsad @ Vapi in Civil Misc. Application (Condonation of Delay) No.22 of 2024 and further prayed to quash and set aside the order dated 18.1.2024 in Regular Civil Appeal No.40 of 2020 passed by the learned 4^th Additional District Court, Valsad @ Vapi.

3. Learned advocate for the petitioner contended that the petitioner filed Regular Civil Appeal No.40 of 2020 (Old No.14 of 2010) against the judgment and decree dated 13^th May, 2010 rejecting the suit by learned Principal Civil Judge, Pardi. It is submitted that as original learned advocate for the petitioner did not remain present, the petitioner engaged another advocate, who also did not remain present on 18.1.2024. Resultantly, the appeal came to be dismissed for default by learned District Court. The petitioner filed an application for setting aside ex parte order with an application for condonation of delay of 112 days. The learned Court below rejected the application on the ground that the reasons assigned in the application are not sufficient. It is submitted that the delay of 112 days be condoned in the interest of justice as the petitioner has a very good case both; on facts as well as on law in the appeal. It is submitted that if on a hyper-technical approach of the learned Court below, delay is not condoned, the purpose of filing the appeal would be futile and the present petitioner would be remediless. It is further contended that while issuing a notice, the Coordinate Bench of this Court has directed the present petitioner to deposit an amount of Rs.10,000/- (Rupees ten thousand only) as cost which has already been deposited by the petitioner before this Court on 25.4.2025. The copy of receipt is placed on record which is taken on record. Except above, no other submissions are made.

4. Having considered the submissions and the averments made in the application, it appears that the learned advocate for the petitioner did not remain present before the learned District Court at the time of hearing the appeal. Resultantly on 18-01-2024, the appeal came to be dismissed for default. The application for condonation of delay of 112 days was filed by the petitioner alongwith an application for restoration of the appeal. The reason which is assigned by the applicant in the application for condonation of delay is the negligence on the part of the learned advocate for the petitioner. In catena of decisions, the Hon’ble Apex Court has held that absence of any advocate when the matter is taken up for hearing, is not a ground for condonation of delay. However, the Court is not precluded from taking a justice oriented view. This Court is of the opinion that if the delay of 112 days is not condoned and the appeal is not restored to its original file, the petitioner would be remediless and there is no other remedy whereby the petitioner can assail the judgment and decree passed against in the suit.

5. This Court is also of the view that considering the nature of dispute, delay of 112 days is required to be condoned on a condition