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SCA/9426/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9426 of 2010
=========================================================
VALLABHBHAI
NATHABHAI PATEL - Petitioner(s)
Versus
KARSANBHAI
NARANBHAI GADHVI - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL S SHAH for
Petitioner(s) : 1, MR SURESH M SHAH for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MR
VH KANARA for Respondent(s) : 1,
MR VINOD M GAMARA for
Respondent(s) : 1,
MR MANRAJ A BAROT for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 18/11/2010
ORAL
ORDER
The
present petitioner is the original defendant in Summary Suit No.13
of 2003. During the proceedings of the above referred summary suit,
unconditional leave to defend was granted by the Court in favour of
the present petitioner. Thereafter, suit was converted from summary
suit to Regular Civil Suit No.46 of 2009 on 31-1-2003 and thereafter
it was posted for framing of issues. The present petitioner did not
file written statement till 18-1-2010 and on 18-1-2010, along with
an application for condonation of delay, he filed the application
for permission to file written statement. However, same was
rejected by the trial court. It was observed by the trial court that
the petitioner could not file the written statement due to bona fide
technical mistake. Hence, the present petition.
Heard
learned advocates, Mr.Mehul S.Shah for the petitioner and
Mr.V.H.Kanara for the respondent.
Mr.Shah
has placed on record certified copy of rojkam of the trial Court
which shows that after granting leave to defend in summary suit, the
trial court converted the summary suit into regular civil suit and
it was listed on 2-3-2009. Certified copy of the rojkam produced by
Mr.Shah is ordered to be taken on record. It appears that the matter
was not kept for filing the written statement and straightaway it
was listed for framing of issues. In view of the above, in the
opinion of this Court, permission should be granted to the present
petitioner to file written statement to defend his case. Matter
should not be disposed of on technical ground and opportunity should
be afforded to the present petitioner-original defendant to defend
his case.
In
view of the above, this petition is allowed. Order dated 11-3-2010
passed below Ex.29 in Regular Civil Suit No.46 of 2009 by the 5th
Addl. Sr. Civil Judge, Jamnagar, is quashed and set aside and
application Ex.29 is hereby allowed. The petitioner shall pay
Rs.3,000/- (Rupees Three Thousand only) towards costs to the
respondent. Trial Court is directed to dispose of the suit as early
as possible since the original suit was of the year 2003. Both the
learned advocates submitted that original plaintiff and defendant
will co-operate in expedite hearing of the suit.
(M.D.SHAH,J.)
radhan
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