Case Note & Summary
The petitioner, Sheshrao Vithobaji Lakhapurkar, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 29/04/2011 passed by the learned Ad hoc District Judge-1, Amravati, rejecting his application for condonation of delay of 5 months and 15 days in filing the application for restoration of the application for condonation of delay in the First Appellate Court. The petitioner had suffered a decree in Regular Civil Suit No.50/2005 filed by the respondent, Shyamrao Shiladin Jaiswal, claiming easementary rights of light and air, as the parties were neighbours. The suit was decreed on 31/03/2006. The petitioner filed an appeal in the First Appellate Court on 15th February, 2008, which was belated. He filed an application for condonation of delay, citing a communication gap with his Advocate and his own ailments. That application was dismissed in default on 1st July, 2010 due to non-appearance of the Advocate. Thereafter, the petitioner filed an application for restoration of the said application after a delay of 5 months and 15 days. The Ad hoc District Judge rejected the condonation application for this further delay. The High Court, considering the well-settled dictum that a party should be allowed to prosecute its remedy on merits rather than being thrown out on technicalities, held that final indulgence should be shown to the petitioner. Despite the respondent's serious objection to the delay, the court allowed the writ petition, set aside the impugned order, and condoned the delay of 5 months and 15 days, directing the First Appellate Court to restore the application for condonation of delay and decide it on merits.
Headnote
A) Civil Procedure - Condonation of Delay - Restoration of Application - Party should be allowed to prosecute remedy on merits rather than being thrown out on technicalities - The petitioner sought condonation of delay of 5 months and 15 days in filing restoration application of the application for condonation of delay in filing First Appeal - The High Court held that final indulgence should be shown to the petitioner to prosecute the restoration application on merits, despite the delay, considering the well-settled dictum that a party should be heard on merits (Paras 4-5).
Issue of Consideration
Whether the Ad hoc District Judge erred in rejecting the application for condonation of delay of 5 months and 15 days in filing the restoration application of the application for condonation of delay in the First Appeal.
Final Decision
The writ petition is allowed. The impugned order dated 29/04/2011 is set aside. The delay of 5 months and 15 days in filing the restoration application is condoned. The First Appellate Court is directed to restore the application for condonation of delay and decide it on merits. Rule made absolute accordingly.
Law Points
- Condonation of delay
- restoration of application dismissed in default
- party should be heard on merits
- technicalities should not defeat substantive rights
