2022 (5) TMI 1420

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....earned 3rd Additional Senior Civil Judge, Surat. By the said application Exh. 44, the petitioners - original defendant Nos. 3 and 4 had prayed for to open their right to file written statement, which was closed on 1.5.2012. 3. Despite due service, the respondents have chosen not to appear before this Court, leaving no option but to proceed with the matter Ex-parte. 4. Heard learned advocate Mr. Nirad Buch for the petitioners. He submitted that the respondent No. 1 has filed the Special Civil Suit No. 447 of 2010 in the concerned Civil Court at Surat for declaration and permanent injunction, wherein, pursuant to the summons issued, the petitioners filed their appearance through their advocate on 14.12.2010. However, thereafter, there was n....

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.... to file their written statement and by not exercising the powers conferred by Order VIII Rule I of the Civil Procedure Code, 1908 (CPC). 6. Learned advocate for the petitioners further submitted that the learned trial Court has taken a very hyper technical view of the matter and disallowed the application, otherwise, the petitioners have a good case on merits. 7. Thus, making above submissions it is urged that this petition may be allowed in the larger interest of justice by setting aside the impugned order and further to allow the petitioners to file their written statement. 8. Regard being had to the submissions advanced and considering the material placed on record as well as the impugned order passed below Exh. 44 in Special Civil S....

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....ant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (See: Shakuntala Devi Jain v. Kuntal Kumari and Ors. MANU/SC/0335/1968 : (1969) 1 SCR 1006; The State of West Bengal v. The Administrator, Howrah Municipality and Ors. MANU/SC/0534/1971 : (1972) 1 SCC 366; N. Balakrishnan v. M. Krishnamurthy MANU/SC/ 0573/1998 : (1998) 7 SCC....

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....iving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the Appellant. 11. Thus, the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 12. Further, it is trite law that a party should not suffer due to the in action on the part of the advocate and that the matter should be decided on merits rather than on technical ground. 13. At this juncture a beneficial reference can be made to a decision of t....