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SCA/15785/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15785 of 2010
=========================================================
GUNVANTLAL
AMRUTLAL PATEL & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
MR
JIGAR G GADHAVI for
Petitioner(s) : 1 - 2.
MR NEERAJ SONI, ASST GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 1 - 5.
MR
MEHUL SHARAD SHAH for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 25/02/2011
ORAL
ORDER
1. The
petitioners herein have preferred this petition praying for quashing
and setting aside the order dated 20.09.2010 passed by the Sixth
Additional Senior Civil Judge, Mehsana whereby the suit of the
petitioners was dismissed for default and have further prayed to
direct the court to restore the Regular Civil Suit No. 372/2004.
2. The
petitioners are the original plaintiffs in Regular Civil Suit No. 372
of 2004 filed before the court of the Principal Senior Civil Judge at
Mehsana for declaration and permanent injunction. The said suit came
to be dismissed for default vide order dated 30.03.2010. The
petitioners thereafter preferred restoration application and the same
was also rejected vide order dated 20.09.2010. Being aggrieved by the
said order, the present petition is preferred.
3. Mr.
Gadhvi, learned advocate appearing for the petitioner submitted that
the petitioners were not informed by their advocate at any point of
time about the progress in the suit and that the petitioners came to
know about the order of dismissal for default only on 08.04.2010.
Mr. Gadhvi has submitted that the petitioners should not suffer for
the fault of the advocate.
4. As
a result of hearing and perusal of records, this court is of the
opinion that interest of justice shall be served if the matter is
restored to its original file on condition that the petitioners pay
appropriate costs for the same. Accordingly, with the consent of the
parties the following order is passed:
The
order dated 20.09.2010 passed below Ex. 1 in Misc. Civil Application
No. 17/2010 is hereby quashed and set aside.
The
court below shall restore the civil suit to its original file and
hear and decide the same on merits.
The
petitioners shall pay additional amount of Rs. 7,500/- as cost to
the respondents no. 1, 2, 3 & 5 within a period of four weeks
from today.
On
the said amount being deposited, it shall be paid to the Collector,
Mehsana by way of Account Payee Cheque.
As
far as the amount of Rs. 7500/- deposited earlier by the petitioners
pursuant to the order dated 11.01.2011 is concerned, the same shall
be paid to the respondent no. 4.
The
Registry of this Court is directed to issue an Account Payee Cheque
in the name of Chief Town Planning Officer, Mehsana Nagarpalika qua
Rs. 7500/-.
On
production of receipt qua payment of Rs. 7500/- to the Collector,
the Court below shall proceed with the matter.
It
is made clear that if the additional amount of costs is not
deposited by the petitioners, the suit shall be deemed as not
restored.
5. Petition
is allowed to the aforesaid extent.
(K.S.
JHAVERI, J.)
Divya//
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