- (1.)RULE. Ms. Lilu K. Bhaya, learned advocate waives service of notice of Rule on behalf of respondents No. 1 and 2 and Shri B. G. Patel, learned advocate waives service of notice of Rule on behalf of respondent No. 3. With the consent of learned advocates appearing for the respective parties, the petition is taken up for final hearing today.
(2.)BY way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, order or direction, quashing and setting aside the order passed by the learned 3rd Additional Senior Civil Judge, Himmatnagar passed in Civil Misc. Application No. 78 of 2005 in dismissing the application submitted by the petitioners for condonation of delay of 166 days in filing the restoration application for restoration of Special Civil Suit No. 39 of 2002 which was dismissed for default.
(3.)IT is the cardinal principle of law that normally sufficient cause is to be construed liberally unless there are allegations of malafide that deliberately with a malafide intention the proceedings were not initiated within the period of limitation. It appears from the impugned order that there are no such allegations. By not filing restoration application within the stipulated time the petitioner was not going to be benefitted. Under the circumstances, the learned trial court ought to have condoned the delay and ought to have given an opportunity to the petitioners to submit the case on merits in restoration application and even on imposition of some reasonable cost the delay ought to have been condoned.