Gujarat High Court Case Information System
Print
CRA/179/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 179 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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?
=========================================================
JAYDEVI
MINERALS - Applicant(s)
Versus
ADITYA
METAL & ALOIEDS PVT LTD - Opponent(s)
=========================================================
Appearance :
MR
AB GATESHANIYA for Applicant(s) : 1,
NOTICE
SERVED BY DS for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/11/2008
ORAL
JUDGMENT
1. Present
Civil Revision Application is filed by the petitioners ? original
plaintiff challenging the order passed by the learned Additional
Civil Judge and JMFC, Surendranagar dated 31.07.2007 passed below
Exh.11 in Civil Misc.Application No.1 of 2005, by which the learned
trial Court has dismissed the application submitted by the petitioner
? plaintiff to restore the Suit which came to be dismissed for
non-prosecution and as the learned Advocate for the petitioners who
was suffering from typhoid did not remain present on 09.12.2004.
2. Though
served nobody appears on behalf of the respondents. Vide order dated
09.12.2004, Regular Civil Suit No.11 of 2000 came to be dismissed for
non-prosecution by the learned trial Court as neither the learned
Advocate for the petitioner nor the petitioner remained present.
Subsequently the petitioner submitted application being Civil
Misc.Application No. 1 of 2005 before the learned trial Court for
restoring the said Suit by submitting that the learned Advocate for
the petitioner was suffering from typhoid and therefore, she could
not remain present nor she could inform the petitioner about the date
of hearing. The learned trial Court dismissed the said application by
holding that the petitioner- plaintiff has not filed any supporting
affidavit with respect to sickness of the learned Advocate. It
appears that being aggrieved and dissatisfied with the order passed
by the learned trial Court on 31.07.2007 passed in Civil
Misc.Application No.1 of 2005, the petitioner by mistake preferred
Appeal from Order before the learned District Judge, Surat which came
to be dismissed by the learned Additional District Judge, Fast Track
Court No.1, Surendranagar vide order dated 14.08.2008 on the
ground that same is not maintainable, hence, the petitioner has
preferred present Civil Revision Application mainly challenging the
order passed by the leaned trial Court passed below Civil
Misc.Application No.1 of 2005 by which the learned trial Court has
not restored the suit to file. Considering the impugned order passed
by the learned trial Court in Civil Misc.Application and the cause
shown that the learned advocate for the petitioner was suffering from
typhoid and therefore, she could not remain present on 09.12.2004 the
date on which hearing of the suit was fixed and considering above,
the learned trial Court ought to have restored the suit to file and
ought to have proceeded further with the hearing of the suit on
merits. It appears that the learned trial Court has taken too
technical view in considering the restoration application. It is
required to be noted that it is not finding of the learned trial
Court that the petitioner and their Advocate has deliberately with a
view to delay the proceedings did not remain present. In view of
above, the learned trial Court ought to have allowed the restoration
application and ought to have restored the suit to file.
3. Under
the circumstances and for the reasons stated above, impugned order
dated 31.07.2007 passed below Exh.11 in Civil Misc.Application No.1
of 2005 passed by the learned trial Court is hereby quashed and set
aside and Regular Civil Suit No.11 of 2000 is restored to file. Now
the learned trial court to decide and dispose of the suit in
accordance with law and on merits. Mr.Gateshaniya, learned Advocate
for the petitioner has submitted that the petitioner will give
fullest cooperation to the learned trial Court for early disposal of
the suit and they will not ask for unnecessary adjournment. Rule is
made absolute. No order as to costs.
[M.R.Shah,J.]
satish
Top