Gujarat High Court
Patel Hiteshkumar Natwarlal vs Legal Heirs Of Decd. Patel Ishwarbhai ... on 22 November, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/12469/2019 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12469 of 2019
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PATEL HITESHKUMAR NATWARLAL
Versus
LEGAL HEIRS OF DECD. PATEL ISHWARBHAI KHODIDAS
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1,8
DELETED(20) for the Respondent(s) No. 1.1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 10,4,5,6,7,8.1,8.2,9
MR. RAJENDRA D JADHAV(10026) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1.2,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 22/11/2021
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Pratik Barot and learned advocate Mr. Rajendra D. Jadhav waive service of notice of rule for and on behalf of concerned respondents.
2. By way of present petition, petitioners have requested for following reliefs:
(a) Your Lordships may be pleased to admit this petition;
(b) Your Lordships may be pleased to quashed and set aside the order dated 20.04.2019 passed by the learned Principle Senior Civil Judge, Viramgam in Civil Misc. Application No.12 of 2014 in Restoration Page 1 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 application in Special Civil Suit No.552 of 2008 and Heard the Case of the Petitioners on Merits;
(c) Be pleased to grant any other relief/s as may deem fit proper, in the interest of justice.
3. Short facts of the present case may be referred as under:
That petitioners are the original plaintiffs in Special Civil Suit No.552 of 2008, which is filed for the cancellation of sale deed and specific performance of the agreement. As per the averments, the respondent No.1 had executed one registered agreement to sell the land of Survey No.353/1, 356/1 situated at Rudatal Village for Rs.31,891/- dated 7.7.1995 without possession. As per condition, respondent Nos.1 and 2 were to clear the title and execute the sale deed in the favour of petitioners on or before 15.11.1995. Respondent Nos.1 and 2 failed to clear the title of the land, and therefore, on 30.5.1996, possession of land was given against the full amount of Rs.1,30,276.60 and additional supplementary agreement was executed containing the fact that sale deed would executed on the demand of the petitioners. Even though respondent Nos. l and 2 executed sale deed in favour of opponent no.3 in the year 2004 without informing the plaintiff. In April 2007, plaintiff had called the respondent Nos.1 and 2 to execute the sale deed as per agreement, at that Page 2 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 time, plaintiff got the said information and filed the suit for cancellation of sale deed being Special Civil Suit No.552 of 2008. On 13.05.2014, advocate of the petitioners given an application for adjournment and matter was posted on
04.07.2014. On 04.07.2014, clerk of the previous advocate of the petitioners had given one application for adjournment for medical treatment of teeth of previous advocate and same was considered by the learned Court-below and matter was adjourned to 11.07.2014. Said adjournment date was not informed to the advocate on record namely Jakirbhai Panseriya, and therefore, petitioners having no knowledge regarding the date of hearing of next date fixed on 11.07.2014 were not present before the court. In absence of the petitioners suit was dismissed for default on 23.07.2017. However, said information was not available with the advocate of the petitioners that Court had passed an order of dismissal of the suit for default. One compliant dated 28.08.2014 was filed before the police against the respondent Maneklal Jivabhai and second police complaint was filed against respondent No.2 Kanjibhai on 10.09.2014. Advocate appearing in the suit had no information, as he was not aware of the dismissal of the suit. On 01.10.2014, the petitioners had approached the another advocate Mr. R.P Parikh for another matter, at that time, advocate on record Mr. Page 3 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 Jakirbhai Panseriya was found in the Court complex, at that time, petitioners had inquired regarding pendency of the suit. Advocate on record Mr. Jakirbhai had inquired and got the information regarding dismissal order of the suit on 01.10.2014. After receiving such information, petitioners had given application for certified copy and same was received on 09.10.2014. There was delay of 44 days occurred in filing the restoration application before the learned Principle Senior Civil Judge, Viramgam, and therefore, condonation of delay being Civil Misc. Application No.12 of 2014 was filed. Learned Principle Senior Civil Judge, Viramgam rejected the condonation of delay application filed for restoring Special Civil Suit No.552 of 2008 mainly on the ground that petitioners were trying to delay the suit as issues were framed on 07.04.2014. Hence this petition.
4. Heard learned advocate for the petitioners and learned advocate for the respective respondents.
5. Learned advocate for the petitioners submits that delay was occurred because of advocate on record having no knowledge regarding dismissal of the suit for default on dated 01-10-2014. That, within 52 days, petitioners had inquired and got the information regarding dismissal of the suit and after deduction period of receiving the certified copy of 8 days, delay of 44 days remained and in the above stated facts and Page 4 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 circumstances, delay was occurred, which was not under the control of the petitioners, and therefore, there is no negligency on the part of the petitioners. That on the fault of advocate, petitioners should not be punished by way of rejecting the whole suit. The Trial Court has committed grave error in not considering the delay application. Hence, it is requested by learned advocate for the petitioners to allow present petition and set aside the impugned order dated 20.4.2019 passed in Civil Misc. Application No. 12 of 2014 in restoration application of Special Civil Suit No.552 of 2008.
6. Learned advocate for the respondents strongly objected the arguments advanced by learned advocate for the petitioners and submitted that Special Civil Suit No.552 of 2008 was disposed of finally upon non-prosecution for 7 long years, as on every occasion, when the suit was fixed for hearing, the petitioners through their advocate sought adjournment for one or the other reasons by citing false flimsy grounds. It is further submitted that the Trial Court has rightly dismissed the suit after framing the issues and after affording sufficient opportunity to adduce the evidence of the petitioners. That petitioners are not interested in proceedings for considerable period of time. It is further submitted that after dismissal of the suit, petitioners filed restoration application being Civil Misc. Application No.12 of 2014 with delay of 44 Page 5 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 days, however, even in pending the restoration application, petitioners sought multiple adjournment applications ever after the same kept for final hearing. That the petitioners have a modus operandi to conduct the matter delaying tactics. That restoration application with delay was also rightly rejected by the Court-below after having been pending for 5 years. That no sufficient cause was explained by the petitioners for condoning the delay in preferring restoration application as well as application for delay condonation. That flimsy grounds that advocate was unaware of dismissal of the suit, cannot be believed. That story as portrayed by the petitioners is false and an attempt to shift the burden on advocate. It is further submitted that adjournment applications given by the clerk of the advocate are on record and the date to which the suit was adjourned must be informed to the advocate by his clerk and this reason itself is perverse and false and creates doubts. It is further submitted that it is the duty of the petitioners to be awake and conscious about the proceedings which they instituted, and therefore, Trial Court has rightly considered that no sufficient explanation was given by the petitioners while dismissing the application. That the present petitioners in their application for condonation of delay did not change their conduct of preferring multiple adjournment applications with a clear intention of not proceeding with the matter Page 6 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 diligently and keep the matter pending by applying delaying tactics. That reasoned order was passed by the Trial Court after due process of law, and therefore, it cannot be disturbed by this Court. In support of his arguments, learned advocate for the respondents, has relied upon the judgment in the case of Lanka Venkateswarlu (D) by Lrs Vs. State of A.P. and others reported in 2011 SCCL. COM 154. Hence, it is requested by learned advocate for the respondents to dismiss the present petition and confirm the order passed by the Trial Court in Civil Misc. Application No.12 of 2014 dated 20.04.2019.
7. Having heard learned advocates for the respective parties and perused the material on record, it appears that Special Civil Suit No.552 of 2008 was filed by the present petitioners for cancellation of sale deed and specific performance of the agreement. As alleged in the plaint, respondent no.1 had executed one registered agreement to sell for Survey No.353/1 and 356/1 of Rudatal Village, against Rs.31,891/- dated 07.07.1995 without possession and respondent nos.1 and 2 were obliged to clear the title and execute the sale deed in favour of the petitioners on or before 15.11.1995. As respondent nos.1 and 2 failed to clear the title of the land and therefore, on 30.05.1996, possession of the suit land was handed over to the plaintiff against the full and final payment of Rs.1,30,276.60 as averred in the suit and additional Page 7 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 supplementary agreement was executed containing the fact that as and when demanded by the plaintiff, sale deed would be executed in favour of the plaintiff. However, defendant nos.1 and 2 had executed sale deed in favour of opponent no.3 in the year 2004 without informing the plaintiff. The plaintiff had called the respondent nos.1 and 2 in April-2007 and requested to execute the sale deed as per the agreement. At that time, he got the information of executing of the sale deed by them in favour of opponent no.3 and hence, for cancellation of sale deed, Special Civil Suit No.552 of 2008 was filed by the plaintiff. It appears that on 13.05.2014, adjournment application was filed before the Court by an advocate appearing on behalf of the petitioners and matter was posted on 04.07.2014. As per the submissions made by the petitioners, on 04.07.2014, clerk of the previous advocate of the petitioners submitted one application for adjournment for medical treatment of teeth of previous advocate by mistake which was considered by the Court-below and the matter was adjourned to 11.07.2014. The said information was not given to the advocate on record viz. Jakirbhai Panseriya as well as the petitioners. As the petitioners having no knowledge in respect of the date of hearing fixed on 11.07.2014, they were not remained present before the Court and in their absence, next date was fixed on 23.07.2014 and the suit was dismissed for Page 8 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 default. Advocate engaged by the petitioners was not informed about the dismissal of the suit for default in absence of the petitioners. On 01.10.2014, as per the submissions of the petitioners, they approached another advocate viz. R.P. Parikh for another matter, at that time, they also had a meeting with their advocate engaged in the suit and Jakirbhai had inquired in respect of Special Civil Suit No.552 of 2008 and he came to know that their suit was dismissed for default by the Court. Immediately, they applied for certified copy of the order on 09.10.2014. They preferred restoration application before the learned Principal Senior Civil Judge, Viramgam with the condonation of delay of 44 days being Civil Misc. Application No.12 of 2014. It appears that from the reasons assigned by the Trial Court, while dismissing the application for condonation of delay, the Trial Court has merely discussed the proceedings of Special Civil Suit No.552 of 2008, adjournment applications submitted by the petitioners, granted by the Court or dismissed by the Court, presence of the party or their advocate. Reasons assigned by the present petitioners for condoning the delay were not found sufficient by the Trial Court. It is not in dispute that the issues were framed by the Trial Court on 07.04.2014. Three different adjournments were granted on 25.04.2014, 13.05.2014 and 04.07.2014. On all three adjournments, clerk of the advocate submitted his Page 9 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 application for adjournment before the Trial Court in the suit. The next date was fixed on 23.07.2014. This fact was not aware to the advocate engaged by the petitioners or the petitioners and in absence of the petitioners, the suit was dismissed for default on 23.07.2014. The plaintiff came into knowledge of dismissal of their suit on 01.10.2014 for the first time. They applied for certified copies of the order immediately on 09.10.2014 and filed restoration application with application for condonation of delay of 44 days before the Trial Court. Prima facie, it appears that the petitioners were not aware of dismissal of the suit on 23.07.2014 or previous proceedings fixed on three dates i.e. 13.05.2014, 04.07.2014 and 11.07.2014. Mistake on the part of the advocate to remain absent before the Court in the suit filed by the petitioners cannot be shifted to the present petitioners or held liable for dismissal of the suit by the Court as there is no huge delay or intentional delay caused in filing the restoration application of the suit by the present petitioners.
8. Having heard learned advocates for the respective parties and after going through the record and for the reasons given in the application in condonation of delay filed before the Trial Court and also considering the fact that the delay was only 44 days for which valid explanation has been given by the petitioners, prayer made by the petitioners requires Page 10 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022 C/SCA/12469/2019 ORDER DATED: 22/11/2021 consideration. Hence, impugned order dated 20.04.2019 passed by the learned Principal Senior Civil judge, Viramgam in Civil Misc. Application No.12 of 2014 in Restoration Application of Special Civil Suit No.552 of 2008 shall be quashed and set aside. Delay prayed by the petitioners in CMA No.12 of 2014 shall be condoned. Restoration application shall be taken on record and decided on merits after hearing the party within a period of three months from the date of receipt of this order.
9. With the above observations, present petition is hereby allowed. Rule is made absolute accordingly.
(B.N. KARIA, J) K. S. DARJI Page 11 of 11 Downloaded on : Wed Jan 12 03:13:11 IST 2022