Case Law Details
Nimesh Dilipbhai Brahmbhatt Vs Hitesh Jayantilal Patel (Gujrat High Court)
Undisputedly summons issued by the learned trial Court was served upon the petitioners on 14.12.2010 pursuant to which, the petitioners engaged an advocate to represent their case before the learned trial Court. However, no written statement was filed on behalf of the petitioners resulting into closure of the right of the petitioners to file the written statement by virtue of an order dated 1.5.2012. It is the case of the petitioners that the learned advocate representing their case before the learned trial Court had not informed the petitioners nor he took any pains to file the written statement on behalf of the petitioners. It is further the case of the petitioners that the petitioners came to know about the status of the suit only when they received the affidavit of examination in chief of the respondent No. 1 – plaintiff by way of R.P.A.D and thereupon the petitioners immediately move on and consulted another advocate and accordingly such delay has occurred in filing the written statement.
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.
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.
In the aforesaid backdrop, the Court is of the considered view that valuable right of the defendant and petitioners herein should not be defeated by declining to condone the delay which has occurred for the in action on the part of their advocate. More so when, despite service the respondents herein have chosen not to appear before this Court and to controvert the petition. Accordingly, the Court is inclined to exercise discretion in favour of the petitioners, however with some exemplary costs of Rs. 20000.
Please become a Premium member. If you are already a Premium member, login here to access the full content.
Very informative case law