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CRA/428/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 428 of 2004
For
Approval and Signature:
HONOURABLE
MS.JUSTICE BELA TRIVEDI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
CHANDRAKANT
HARIBHAI PANCHAL F/O MINOR JAY CHANDRAKANT & 2 - Applicant(s)
Versus
VASANSTBHAI
NATVARLAL SHAH & 6 - Opponent(s)
=========================================================
Appearance
:
MR
MA BUKHARI for
Applicant(s) : 1, 1.2.1, 1.2.2,1.2.3
NOTICE SERVED BY DS for
Opponent(s) : 1 - 7.
MS VIRAJ S FOZDAR for Opponent(s) : 2 - 3,6 -
7.
=========================================================
CORAM
:
HONOURABLE
MS.JUSTICE BELA TRIVEDI
Date
: 21/04/2011
ORAL
JUDGMENT
1. The
applicants-original plaintiffs have, by way of the present
Revision Application filed under Section 115 of the Code of Civil
Procedure, challenged legality of the order dated 30.07.2004 passed
by the learned Judge, Court No.12, City Civil Court, Ahmedabad below
Exh.1 in Civil Misc. Application No.507 of 2002 whereby, the lower
Court had rejected the application seeking condonation of delay and
application for restoration of the civil suit.
2. The
short facts giving rise to the present Revision Application are that
the applicants-plaintiffs had filed a suit being Civil Suit No.6051
of 1997 in the City Civil and Sessions Court, Ahmedabad seeking
specific performance of the agreement dated 08.05.1994 in respect of
the suit property being Flat No.D/2 admeasuring 100 sq.yards in
Russian Colony, F.P. No.343 Paiki, Ellisbridge Ward – A/1,
Ahmedabad (hereinafter referred to as the ‘suit property’) executed
by the present respondents (defendants). The said suit came to be
dismissed for want of prosecution by order dated 19.10.2000 passed by
the learned (Aux.) Chamber Judge, City Civil Court, Ahmedabad. It
appears that the plaintiffs were unaware about the said dismissal of
the suit and when they came to know about the same, filed Misc. Civil
Application No.507 of 2002 on 18.09.2002 for restoration of the suit
which was dismissed for default, and also for condonation of delay
which had occurred in filing the said application for restoration.
The said Civil Misc. Application No.507 of 2002 came to be dismissed
by the learned Judge, Court No.12, City Civil Court, Ahmedabad vide
order dated 30.07.2004. Being aggrieved by the said order, the
applicants-plaintiffs have filed the present proceedings under
Section 115 of the Code of Civil Procedure.
3. It
has been submitted by learned advocate Mr.M.A. Bukhari for the
applicants that the concerned advocate appearing for the plaintiffs
in the suit did not remain present and also did not remove the
objections raised by the office, and hence, the said suit filed by
the plaintiffs came to be dismissed for default. According to
Mr.Bukhari, even after the dismissal of the suit, the said advocate
did not inform the plaintiffs and, therefore, the delay was caused in
filing the application for restoration of the suit. According to
Mr.Bukhari, the lower Court has materially erred in not considering
the said cause as sufficient cause for condoning the delay and for
restoring the suit on file and, therefore, has committed
jurisdictional error which requires to be rectified by this Court in
the interest of justice.
4. Learned
advocate Mr.Shalin Mehta for Ms.Viraj S. Fozdar for the respondents,
however, submitted that there was no sufficient cause shown by the
plaintiffs for not approaching the Court immediately after the
dismissal of the suit and there being gross negligence on the part of
the plaintiffs and their advocate, the lower Court has rightly
rejected the application of the plaintiffs for condonation of delay
and for restoration of the suit.
5. Having
regard to the submissions made by the learned advocates for the
parties and the documents on record, more particularly, the impugned
order, it clearly transpires that the suit of the plaintiffs came to
be dismissed for default as the concerned advocate appearing for the
plaintiffs did not attend the suit and did not remove the office
objections raised in the suit. Not only that, even after the
dismissal of the suit, the said advocate did not inform the
plaintiffs and, therefore, the plaintiffs were absolutely unaware
about the dismissal of the suit. It was also stated by the plaintiffs
in the application seeking restoration of the suit that when they
came to know about the said dismissal of the suit, they applied for
the certified copies of the proceedings and had come to know that the
concerned advocate appearing for them had not paid process fees and
had not removed the office objections raised by the Registry, which
had resulted into dismissal of the suit. Having regard to the facts
and averments made by the plaintiffs on affidavit, it clearly
transpires that there was sheer negligence and carelessness on the
part of the learned advocate appearing for the plaintiffs at the
relevant time. It cannot be gainsaid that the party should not be
made to suffer for the negligence and carelessness of the advocate.
The lower Court ought to have considered the said reasons as the
sufficient cause for condonation of delay and for the restoration of
the suit in the interest of justice. It appears that the lower Court
unfortunately dismissed the application on technical grounds without
considering the negligence of the then learned advocate for the
plaintiffs. The said order being perverse, leading to miscarriage of
justice, deserves to be set aside.
6. For
the reasons stated above, order dated 30.07.2004 passed by the
learned Judge, Court No.12, City Civil Court, Ahmedabad in Civil
Misc. Application No.507 of 2002 is quashed and set aside and the
said Civil Misc. Application No.507 of 2002 is allowed, restoring
Civil Suit No.6051 of 1997 on file.
7. Accordingly,
the said suit shall be proceeded further in accordance with law. This
Civil Revision Application stands allowed. Rule is made absolute with
no order as to costs.
(BELA
TRIVEDI, J.)
Hitesh
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