Gujarat High Court
Mahipatsinh Khumansinh vs Mahendrasinh Jashwantsinh on 11 December, 2018
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/1175/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1175 of 2017
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MAHIPATSINH KHUMANSINH
Versus
MAHENDRASINH JASHWANTSINH
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Appearance:
MR MR BUKHARI for MR SK BUKHARI(212) for the PETITIONER(s) No.
1,2,3,4,5
MR MEHUL S. SHAH, SR. ADVOCATE with MR GAURAV
CHUDASAMA(5660) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 11/12/2018
ORAL ORDER
1. With the consent of learned advocates appearing for the parties, present matter is taken up for final disposal today.
2. By way of this petition under Article 227 of the Constitution of India, the petitioners challenge order dated 12.8.2016 passed by the learned Additional District Judge, Bharuch in CMA No.57 of 2009, whereby the learned appellate Judge refused to condone the delay of nine months caused in preferring appeal against the order dated 26.9.2008 passed in Probate Application No.86 of 2007.
3. Upon considering the submissions made at bar, it appears that the learned appellate Judge rejected the application u/s 5 of the Limitation Act (for short "the Act") on premise that the petitioners did not proceed with the hearing of the application u/s 5 of the Act for about seven years and considering such conduct, the learned appellate Judge refused Page 1 of 2 C/SCA/1175/2017 ORDER to condone the delay and further found and observed that the reasons/grounds assigned by the petitioners for delay are not proper. So far as delay caused in prosecuting application u/s 5 of the Act for seven years is concerned, in Court's opinion, it does not fall within the scope of section 5 of the Limitation Act and therefore, application u/s 5 of the Act cannot be rejected on account of delay caused in prosecution the application itself.
At this stage, learned Senior Counsel Mr. Mehul S. Shah states at bar that the respondents have no objection if delay is condoned and the Court may not give any further reason.
4. Accordingly, present petition is allowed and order dated 12.8.2016 passed by the learned Additional District Judge, Bharuch in CMA No.57 of 2009 is hereby quashed and set aside and delay of nine months caused in preferring appeal against the order dated 26.9.2008 passed in Probate Application No.86 of 2007 is hereby condoned, with no order as to costs.
5. Considering the facts of the case, the learned appellate Judge is directed to expedite hearing of the appeal since the probate is granted in the year 2008 and decide the same as early as possible, preferably within six months from the date of service of notice to the respondents in the appeal to be registered now.
(S.H.VORA, J) SHEKHAR P. BARVE Page 2 of 2