Gujarat High Court
Maheshbhai Vallabhbhai Desai vs Maheshbhai Chhaganbhai Limbasiya on 19 February, 2021
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/SCA/14036/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14036 of 2020
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MAHESHBHAI VALLABHBHAI DESAI
Versus
MAHESHBHAI CHHAGANBHAI LIMBASIYA
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR NISHANT LALAKIYA(5511) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 19/02/2021
ORAL ORDER
1. This petition under Article 227 of the Constitution of India is filed by the petitioner - original plaintiff assailing the order dated 28.02.2020, passed by the learned 8th Additional Senior Civil Judge, Rajkot in Civil Misc. Application No. 1973 of 2018 as well as the order dated 08.03.2018, passed by the learned 2nd Additional Civil Judge, Rajkot, passed below exh. 1 in Regular Civil Suit No. 96 of 2014.
2. Heard, learned advocate Mr. Pratik Jasani for the petitioner and learned advocate Mr. Nishant Lalakiya for the respondent.
3. Rule. Learned advocate Mr. Nishant Lalakiya waives service for the respondents. With the consent of the learned advocates for the respective parties, the matter is heard finally today.
3.1 The learned advocate for the petitioner submitted that vide Page 1 of 4 Downloaded on : Thu Jan 13 00:41:10 IST 2022 C/SCA/14036/2020 ORDER impugned order dated 08.03.2018, the aforesaid suit filed by the petitioner - plaintiff came to be dismissed for default and restoration application therein, also came to be rejected by the order dated 28.02.2020. It is submitted that the said application was rejected by the learned Court below on the ground that no sufficient and plausible reason has been assigned for such restoration, however, he submitted that it is on account of learned advocate representing the petitioner - plaintiff before the learned Court below filed no instruction pursis, which, the petitioner - plaintiff did not know and accordingly, did not appear before the Court concerned, eventually led to dismissal of the suit for default. He submitted that as soon as the petitioner - plaintiff came to know about the same, he immediately took the steps. However, the learned Courts below have failed to take the same into consideration and dismissed the suit for default as well as the restoration application therein, though delay condonation application in restoration application was allowed. Accordingly, it is urged that interference of this Court is required to meet the ends of justice. The learned advocate for the petitioner has fairly submitted that the petitioner - plaintiff is ready and willing to pay reasonable cost also.
4. On the other hand, the learned advocate for the respondent, while opposing the present writ petition and supporting the impugned orders, submitted that the learned Courts below have rightly dismissed the suit and the restoration application therein for want of sufficient explanation. He submitted that the explanation given by the petitioner - plaintiff cannot be termed as sufficient and plausible as it appears to be a general explanation, which is rightly not believed and not accepted by the learned Courts below. Accordingly, it is prayed Page 2 of 4 Downloaded on : Thu Jan 13 00:41:10 IST 2022 C/SCA/14036/2020 ORDER that this writ petition may not be entertained and requested to dismiss the same. He also submitted that if this Court is inclined to allow the present petition, in that case, exemplary cost may be imposed upon the present petitioner - plaintiff.
5. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the papers available on record vis-a-vis the facts and circumstances of the case on hand, it appears that the learned trial Court itself has observed that the learned advocate for the plaintiff has given no instruction pursis and thereafter, the matter was adjourned, however, the plaintiff did not turn up and hence, dismissed the suit for default. Against the said order, restoration application being Civil Misc. Application No. 1973 of 2018 was filed, however, the same was also rejected. Prior to that, as it appears from the record, delay condonation application in filing the restoration application is allowed by the concerned Court below, however, the restoration application is rejected. It is settled principle of law that adjudication should be on merits rather than mere technicalities. Accordingly, in the considered opinion of this Court, without going into the merits and demerits of the case, ends of justice would meet if the impugned orders are set aside and allow the petition accordingly, so that the adjudication would be on merits, however, with some exemplary cost.
6. In the above backdrop, present petition is allowed. The impugned order dated 28.02.2020, passed by the learned 8th Additional Senior Civil Judge, Rajkot in Civil Misc. Application No. 1973 of 2018 and the order dated 08.03.2018, passed by the learned 2nd Additional Civil Judge, Rajkot below exh. 1 in Regular Civil Suit No. 96 of 2014, are hereby set aside. The Regular Civil Page 3 of 4 Downloaded on : Thu Jan 13 00:41:10 IST 2022 C/SCA/14036/2020 ORDER Suit No. 96 of 2014 is restored to its original file. Rule is made absolute accordingly.
6.1 In the facts and circumstances of the case, the petitioner is directed to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards costs, to be deposited before the concerned trial Court within a period of two weeks from the date of receipt of copy of this order, which, the respondent - defendant is permitted to withdraw.
[ A. C. Joshi, J. ] hiren Page 4 of 4 Downloaded on : Thu Jan 13 00:41:10 IST 2022