Rajesh I Dave & vs Gujarat Slum Clearance Board & 4 on 1 July, 2015

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Gujarat High Court

Rajesh I Dave & vs Gujarat Slum Clearance Board & 4 on 1 July, 2015

Bench: M.R. Shah, G.R.Udhwani

         C/LPA/845/2015                               JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                LETTERS PATENT APPEAL NO. 845 of 2015
                  In CIVIL APPLICATION NO. 3591 of 2013
     In MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 611 of 2013
           In SPECIAL CIVIL APPLICATION NO. 20649 of 2007



FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH                              Sd/-
and
HONOURABLE MR.JUSTICE G.R.UDHWANI                            Sd/-
==========================================================

1    Whether Reporters of Local Papers may be allowed            NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                     NO

3    Whether their Lordships wish to see the fair copy of        NO
     the judgment ?

4    Whether this case involves a substantial question of        NO
     law as to the interpretation of the Constitution of
     India or any order made thereunder ?

==========================================================
                RAJESH I DAVE & 1....Appellant(s)
                            Versus
       GUJARAT SLUM CLEARANCE BOARD & 4....Respondent(s)
==========================================================
Appearance:
MR KV SHELAT, ADVOCATE for the Appellant(s) No. 1 - 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 5
==========================================================

        CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
               and
               HONOURABLE MR.JUSTICE G.R.UDHWANI




                                Page 1 of 4
           C/LPA/845/2015                                    JUDGMENT



                              Date : 01/07/2015
                    ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Single Judge in Civil Application No. 3591 of 2013 dated 27/2/2015 by which the learned Single Judge has dismissed the said application preferred by the applicants herein - original petitioners requesting to condone the delay caused in preferring the restoration application to restore the main Special Civil Application No. 20649 of 2007, which came to be dismissed for non-prosecution.

2.00. We have heard Mr.K.V. Shelat, learned advocate appearing on behalf of the appellants - original applicants and Mr.H.S. Munshaw, learned advocate appearing on behalf of the contesting respondent - respondent No.1. We have also considered and gone through the impugned judgement and order passed by the learned Single Judge as well as averments made in the application requesting to condone the delay.

3.00. Having heard the learned advocates appearing on behalf of the respective parties and considering the averments made in the application and the supporting affidavit filed along with the Civil Application, we are of the opinion that the learned Single Judge ought to have condoned the delay caused in preferring the restoration application. It appears that as such, there was no malafide intention on the part of the Page 2 of 4 C/LPA/845/2015 JUDGMENT appellants - original applicants to prefer the restoration application belatedly and by not preferring the restoration application within the period of limitation and preferring the same belatedly, as such the appellants - original applicants were not going to get anything and/or they were not going to be benefited. The main Special Civil Application, which was filed challenging the decision of the Board, came to be dismissed for non-prosecution. Under the circumstances, if the delay caused in preferring the restoration application is condoned on imposing reasonable cost and the restoration application is directed to be considerer in accordance with law and on merits, we are of the opinion that it will meet the ends of justice.

4.00. In view of the above and for the reasons stated above, present Letters Patent Appeal is allowed. The impugned judgement and order passed by the learned Single Judge in Civil Application No. 3591 of 2013 dated 27/2/2015 in not condoning the delay, is hereby quashed and set aside. Consequently Civil Application No. 3591 of 2013 is hereby allowed and the delay caused in preferring the restoration application is hereby condoned, however, on condition that the appellants - original applicants shall deposit a sum of Rs.5000/- (Rupees Five Thousand only) with the registry of this Court towards the cost of the present litigation, to be deposited within a period of 10 days from today. On such deposit, the respondent No.1 Board shall be permitted to withdraw the same and the registry is directed to pay the said amount of Rs.5000/- by Account Payee Cheque in the name of the respondent No.1 - Gujarat Slum Clearance Board Page 3 of 4 C/LPA/845/2015 JUDGMENT forthwith.

However, it is made clear that this Court has not expressed any opinion on merits with respect to restoration application and the restoration application now to be heard by the learned Single Judge in accordance with law and on merits.

Sd/-

(M.R.SHAH, J.) Sd/-

(G.R.UDHWANI, J.) Rafik...

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