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SCA/538520/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5385 of 2008
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MULJIBHAI
KARMANBHAI DECEASED THRO HEIRS NARSIBHAI MULJIBHAI - Petitioner(s)
Versus
PATEL
JINABHAI NAGJIBHAI & 5 - Respondent(s)
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Appearance :
MR
MRUGEN K PUROHIT for Petitioner(s) : 1,
MR
SANDEEP N BHATT for Respondent(s) : 1,
RULE SERVED for
Respondent(s) : 2 - 3.
None for Respondent(s) : 4,
RULE SERVED
BY DS for Respondent(s) : 4.2.1, 4.2.2, 4.2.3,4.2.4 -
6.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/09/2008
ORAL
ORDER
1. Heard the learned
advocates appearing for the parties for final disposal of the
petition. It may be noted that learned advocate Mr Sandeep Bhatt
appears for the plaintiff who is the only contesting party in the
petition.
2. Petitioner is the heir of
original defendant No. 3 in Civil Suit No. 419 of 1996 instituted by
respondent No.1 herein.
3. It appears that as legal
representative of deceased defendant No. 3, summons of the Civil Suit
was served to him for the first time in the year 2005. It is the
case of the petitioner that the summons was served after the
returnable date had passed. Be that as it may, the petitioner did
not file the written statement, nor cross-examined the witnesses of
the plaintiff. The stage for filing written statement as well as
cross-examination came to be closed in the process. Thereafter, the
petitioner moved application Exh. 67 on 06.02.2008 and requested the
learned Judge to reopen the stage to permit him to defend the suit.
This application came to be dismissed by impugned order dated
11.03.2008.
4. Though learned advocate
Mr Sandeep Bhatt for respondent No.1 is justified in pointing out
that on account of the petitioner not taking sufficiently prompt
steps for filing written statement and cross-examination of the
witnesses, great inconvenience would be caused to the plaintiff and
his witnesses and that the suit would be delayed. However,
considering the fact that if an application of the petitioner Exh. 67
stands dismissed, he would be virtually defenceless in the pending
suit. I find that in the present case, the request for opening the
stage needs to be reopened on certain terms and conditions.
5. Under the circumstances,
by setting aside the order dated 11.03.2008 passed by the Trial Court
below application Exh. 67, it is further provided that it would be
open for the petitioner to file written statement in the said suit,
which shall be taken on record if filed latest by 30.09.2008.
Thereafter, it would be
open for the petitioner to seek cross-examination of the witnesses
already examined on behalf of the plaintiff upon bearing cost for
their allowances.
The above reliefs are
conditional on the petitioner being a cost of Rs.15,000/- (Rupees
fifteen thousand only) to respondent No.1 and only upon proof of
payment of such cost, the Trial Court shall permit the petitioner to
file written statement and cross-examine the witnesses and
subsequently, all the stages are obviously stand reopened.
The petitioner is directed
to co-operate with early disposal of the suit which the Trial Court
may attend to decide within six months as the suit is of year 1996.
6. With these directions,
the petition is disposed of.
(Akil
Kureshi, J.)
mrpandya*
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