Gujarat High Court
Vijaykumar Amratlal Mistry vs Ilaben Wd/O Jagdishbhai Manilal Patel on 23 December, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/477/2019 JUDGMENT DATED: 23/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 477 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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VIJAYKUMAR AMRATLAL MISTRY
Versus
ILABEN WD/O JAGDISHBHAI MANILAL PATEL
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Appearance:
MR DHAVAL A PATEL(10591) for the Applicant(s) No. 1
MR MA PAREKH(1088) for the Applicant(s) No. 1
MR TEJAS P SATTA(3149) for the Opponent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 23/12/2021
ORAL JUDGMENT
1. Rule. Learned advocate, Mr. Tejas Satta waives service of notice of rule for respondents.
2. This application is filed under Section 115 of the Civil Procedure Code, 1908 challenging the order dated 26.08.2019 passed by learned 6th Additional District & Sessions Judge, Ahmedabad (R) at Mirzapur in Misc. Civil Appeal No.68/2018 as well as the order dated 18.09.2018 passed below Page 1 of 5 Downloaded on : Wed Jan 12 14:15:18 IST 2022 C/CRA/477/2019 JUDGMENT DATED: 23/12/2021 application, Exh.1 by the learned 5th Additional Civil Judge & Judicial Magistrate First Class, Ahmedabad (Rural), Mirzapur in Civil Misc. Application No.17/2018.
3. Heard learned advocate, Mr. Malay Dange for learned advocate, Mr. Dhaval Patel for the applicant and learned advocate, Mr. Tejas Satta for the respondents.
4. Learned advocate for the applicant submitted that the present applicant - original plaintiff filed Regular Civil Suit No.366/2010 before the concerned civil court against the present respondents for specific performance, declaration and permanent injunction, however thereafter, the said suit has been renumbered as Regular Civil Suit No.1197/2015, however, the said civil suit came to be dismissed for non-prosecution on 30.08.2017, copy of said order is placed on record at Page No.33 of the compilation. Learned advocate further submits that thereafter, the present applicant filed Civil Misc. Application for restoration of the said suit, however as there was delay of 135 days caused in filing the said restoration application, the applicant filed application, Exh.1 therein being Civil Misc. Application No.17/2018 for condonation of delay. It is submitted that the concerned civil court vide order dated 18.09.2018 rejected the application filed under the Limitation Act for condonation of delay. It is submitted that on rejection of the said application, the applicant filed Misc. Civil Appeal No.68/2018 before the Page 2 of 5 Downloaded on : Wed Jan 12 14:15:18 IST 2022 C/CRA/477/2019 JUDGMENT DATED: 23/12/2021 concerned District Court, however, the concerned District Court also rejected the said application vide order dated 26.08.2019 and, therefore, the present application is filed.
5. Learned advocate for the applicant has referred to the explanation given by the applicant in the application filed before the concerned civil court under the Limitation Act for condonation of delay of 135 days caused in filing the said application. It is submitted that though the applicant had shown sufficient cause for not filing the application for restoration within a period of limitation, the concerned trial court has wrongly rejected the said application. It is submitted that the District Court has also not properly appreciated the explanation given by the applicant in the application filed for condonation of delay. Learned advocate has, therefore, urged that when the applicant has shown sufficient cause for not preferring the application for restoration, the trial court ought to have condoned the delay and then, ought to have decided the application for restoration on its own merits. Learned advocate has therefore urged that this application be allowed by quashing and setting aside the impugned order and thereby concerned trial court be directed to decide the application on its own merits.
6. On the other hand, learned advocate for the respondents has referred to the averments made in the affidavit-in-reply filed by one of the respondents and, thereafter, contended that when Page 3 of 5 Downloaded on : Wed Jan 12 14:15:18 IST 2022 C/CRA/477/2019 JUDGMENT DATED: 23/12/2021 the applicant has failed to give reasonable explanation for not filing the application for restoration within a period of limitation, both the Courts below have rightly rejected the application filed by the present applicant and, hence, as no error is committed by the court below, this Court may not interfere with the said orders.
7. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the applicant herein filed regular civil suit before the concerned civil court, however, the advocate for the applicant did not remain present nor the applicant remain present before the concerned court and, therefore, the concerned court passed an order on 30.08.2017 and thereby suit was dismissed under Order 9, Rule 3 of the Civil Procedure Code, 1908. When the applicant came to know about the dismissal of the said suit, the applicant immediately filed an application for restoration being Civil Misc. Application No.17/2018, however as there was a delay of 135 days caused in preferring the said application for restoration, separate application at Exh.1 for condonation of delay was filed by the applicant. This Court has perused the explanation given by the applicant in the said application filed under the Limitation Act and is of the view that the applicant has shown sufficient cause for not filing the restoration application within a period of limitation. This Court is also of the view that Page 4 of 5 Downloaded on : Wed Jan 12 14:15:18 IST 2022 C/CRA/477/2019 JUDGMENT DATED: 23/12/2021 the applicant had not remained negligent nor there was any inaction on the part of the applicant in pursuing the remedy and, therefore, the concerned trial court was required to accept the explanation given by the applicant in the application filed before the said court. Therefore when the applicant has shown sufficient cause for not preferring the application for restoration within a period of limitation, this Court is of the view that the said application is required to be accepted.
8. Accordingly, the present Civil Revision Application is allowed. The impugned order dated 26.08.2019 passed by learned 6th Additional District & Sessions Judge, Ahmedabad (R) at Mirzapur in Misc. Civil Appeal No.68/2018 and the order dated 18.09.2018 passed below application, Exh.1 by the learned 5th Additional Civil Judge & Judicial Magistrate First Class, Ahmedabad (Rural), Mirzapur in Civil Misc. Application No.17/2018 are hereby quashed and set aside and thereby the delay caused in filing an application for restoration being Civil Misc. Application No.17/2018 is condoned. Therefore, the concerned trial court shall decide the application for restoration being Civil Misc. Application filed by the applicant herein on its own merits. Rule is made absolute to the aforesaid extent.
Sd/-
(VIPUL M. PANCHOLI, J.) Gautam Page 5 of 5 Downloaded on : Wed Jan 12 14:15:18 IST 2022