Gujarat High Court
Patel Hiteshkumar Natwarlal vs Somabhai Gadidas Patel on 8 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/12470/2019 ORDER DATED: 08/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12470 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12470 of 2019
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PATEL HITESHKUMAR NATWARLAL
Versus
SOMABHAI GADIDAS PATEL
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1,2,3
MR. RAJENDRA D JADHAV(10026) for the Respondent(s) No. 2
NOTICE UNSERVED(8) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 08/10/2021
ORAL ORDER IN SCA-12470 OF 2019
1. Rule returnable forthwith. Learned advocate Mr. Rajendra D. Jadhav waives service of notice of rule for and on behalf of respondent No.2.
2. By way of present petition, petitioners have requested for following reliefs:
"a. Your Lordships may be pleased top admit this
appeal;
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. Page 1 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022
C/SCA/12470/2019 ORDER DATED: 08/10/2021 Application No.14 of 2014 in Restoration Application in Special Civil Suit No.554 of 2008.
c. Be pleased to grant any such other relief/s as may deem fit proper, in the interest of justice."
3. Short facts of the present case may be summarized as under:
3.1 Petitioners are the original plaintiffs of Special Civil Suit No.554 of 2008, which is filed for the cancelation of sale deed and specific performance of the agreement. As per the averments, respondent No.1 had executed one registered agreement to sell for the land of Survey no.
281/1, 303/1, 285/1/2/3/4 situated at Rudatal village, for Rs. 1,05,070/- dated 7.7.1995 without possession. As per condition, respondent no.1 has to clear the title and execute the sale deed in favour of petitioner on or before 15.11.1995. Respondent no. 1 failed to clear the title of the land, and therefore, on 07.03.1996 possession of land was given against the full amount and additional supplementary agreement was executed containing the fact that sale deed would execute on the demand of the petitioners. Even though respondent no. l had executed sale deed in favour of Opponent no. 2 in the year-2004 without informing the plaintiff. In April 2007, plaintiff had called the respondent no.1 to execute the sale deed as per agreement, at that time, plaintiff got the said information and filed the suit for cancellation of sale deed being Special Page 2 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 Civil Suit No.554 of 2008. In the Special Civil Suit No.554 of 2008, learned Civil Judge has framed the issues on 18.05.2013 in the suit filed by the petitioners and thereafter matter fixed for recording evidence on 22.06.2013 and on that day, the applicant No.3 was absent and matter was adjourned on application and thereafter, matter kept on 8.7.2013, on that day the Hon'ble Court was not available and matter was adjourned to 29.7.2013 and thereafter on 29.7.2013, advocate of the respondent named Qureshi was appeared, but respondent's advocate had given application and matter was adjourned to 19.8.2013 and thereafter, on next date i.e. on 7.9.2013 also, the respondent had given application for adjournment, and therefore, right of the respondents were closed on 4.10.2013 and thereafter matter was listed on 4.10.2013 for recording evidence and advocate of the petitioners had given an adjournment application on 4.10.2013, 22.11.2013, 9.12.2013 and thereafter on 24.12.2013, the Hon'ble Court was not available and matter was adjourned on 31.1.2014, 10.3.2014 and 28.3.2014, both the side had given application of adjournment and matter was adjourned on 7.4.2014. Thereafter on 7.4.2014 the respondent's advocate was not present and Court closed the right of respondent to cross-examination and adjourned the matter on 25.4.2014 for evidence of plaintiff and thereafter, matter was adjourned on 13.5.2014 but petitioners had not provided the original documents to his advocate and during that period, son-in-law (Jamai) of the petitioner Page 3 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 No.3, Rajeshkumar aged about 35 years old was expired and matter was adjourned to 4.7.2014. As petitioners were not present, right of evidence was closed and matter was adjourned on 11.7.2014. On 11.07.2014, the advocate of the petitioners was not informed the date of hearing, and therefore, petitioners were not having knowledge regarding the date of hearing, and therefore, on 11.07.2014, matter was dismissed for default on 23.07.2017. The said information was not available with the advocate of the petitioners and learned Court had passed an order of dismissal of the suit for default.
3.2 Thereafter one compliant dated 28.08.2014 was filed before the police against the respondent Maneklal Jivabhai and second police complaint was filed against Kanjibhai on 10.09.2014. An advocate engaged by the petitioners was not informed of the dismissal order. On 01.10.2014, petitioners approached another advocate Mr. R.P Parikh for another matter, at that time, advocate on record Jakirbhai Panseriya was found in the court complex at that time, petitioners had inquired regarding to the pendency of the suit and 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 from the learned Court and delay of 44 days occurred in filing the restoration Page 4 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 application before the learned Principal Senior Civil Judge,Viramgam. Hence, condonation of delay, being Civil Misc. Application No.14 of 2014 was filed. The learned Principal Senior Civil Judge, Viramgam rejected the condonation of delay application filed in restoration application for restoring Special Civil Suit No.554 of 2008 mainly on the ground that the petitioners were trying to delay the suit as issues were framed on 22.06.2013. Hence this petition.
4. Heard learned advocate for the petitioners and learned advocate for the respondent.
5. It is submitted by learned advocate for the petitioners that present petitioners are the original plaintiffs and rejection of delay in restoration of pending suit became very harsh and resulted into reject the suit of the petitioners without tested on merits merely on the hyper technical view of delay. That the Hon'ble Apex had also taken a view that thrown away the case merely on the technical grounds of delay is bad in law and each case should be tested on merits, and therefore, also the case of the petitioners are required to be considered. That the delay in filing restoration application for restoring suit was only for 52 days. The petitioners had inquired and got the information regarding dismissal of the suit and after deduction of period of receiving the certified copy of 8 days, delay of 44 Page 5 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 days remained and in the above stated facts and circumstances, delay was occurred, which was not under the control of the petitioners, and therefore, there is no negligence on the part of the petitioners. That on the fault of advocate, petitioner 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 the present petition and set aside the impugned order dated 20.04.2019 in CMA No.14 of 2019 in restoration application in Special Civil Suit No.554 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.554 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 evidences of the petitioners. The petitioners are not interested in proceedings for considerable period of time. It is further submitted that after dismissal of the suit, the petitioners filed restoration application being Civil Misc. Application No.14 of 2014 with delay of 44 days, Page 6 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 however, even in pending the restoration application, the petitioners sought to prefer 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, the 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 and preferred multiple adjournment applications with a clear intention of not proceeding with the matter diligently and keep the matter pending by applying delaying tactics. That reasoned order was passed by the Trial Page 7 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 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.14 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.554 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 Nos.281/1, 303/1, 285/1/2/3/4 of Rudatal Village, against Rs.1,05,070/- dated 07.07.1995 without possession and respondent no.1 has to clear the title and execute the sale deed in favour of the petitioners on or before 15.11.1995. As respondent no.1 has failed to clear the title of the land and therefore, on 10.05.1996, possession of the suit land was handed over to the plaintiff against the full and final payment of Rs.1,95,000/- and additional supplementary agreement was executed containing the fact that as and when demanded by the plaintiff, sale deed would be executed in Page 8 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 favour of the plaintiff. However, defendant nos.1 and 4 had executed sale deed in favour of opponent no.5 in the year 2004 without informing the plaintiff. The plaintiff had called the respondent no.1 and 4 in April-2007 and requested to execute the sale deed as per the agreement. At that time, he got the information of executing of sale deed by them in favour of opponent no.5 and hence, for cancellation of sale deed, Special Civil Suit No.554 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 absent, next date was fixed on 23.07.2014 and the suit was dismissed for 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 Page 9 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 time, they also had a meeting with their advocate engaged in the suit and Jakirbhai had inquired in respect of Special Civil Suit No.553 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.14 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.554 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 18.05.2013, advocate previously engaged by the petitioners was retired from the proceedings. 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 application for adjournment before the Trial Court in the suit. The next date was fixed 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 Page 10 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 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 present 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 consideration. Hence, impugned order dated 20.04.2019 passed by the learned Principal Senior Civil judge, Viramgam in Civil Misc. Application No.14 of 2014 in Restoration Application of Special Civil Suit No.554 of 2008 shall be quashed and set aside.
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C/SCA/12470/2019 ORDER DATED: 08/10/2021
9. With the above observations, present petition is hereby allowed. Rule is made absolute accordingly.
(B.N. KARIA, J) CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
1. Rule returnable forthwith. Learned advocate Mr. Rajendra D. Jadhav waives service of notice of rule for and on behalf of respondent No.2.
2. By way of present application, the applicant has prayed to permit Amrutbhai Somabhai Patel to be joined as the legal heirs of deceased respondent no.1 - Somabhai Gadidas Patel on the record of the main petition i.e. Special Civil Application No.12470 of 2019 and further prayed to condone the delay in preferring the Civil Application for joining party.
3. Heard learned advocates appearing for the respective parties.
4. Considering the averments made in the present application and having heard learned advocates for the respective parties, it appears that the death certificate of the respondents No.1 issued by the concerned competent authority shows that respondent No.1-Somabhai Gadidas Patel Page 12 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022 C/SCA/12470/2019 ORDER DATED: 08/10/2021 was expired on 27.07.2017. Other side has no objection if the prayer made by the applicant is allowed.
5. Thus, the applicant is permitted to join the legal heirs of deceased respondent no.1 - Somabhai Gadidas Patel on record as party respondent. Necessary amendment shall be carried out in the cause title of the main matter i.e. Special Civil Application No.12470 of 2019. Delay as prayed by the petitioners shall be condoned.
6. Accordingly, present application stands allowed and disposed of. Rule is made absolute to the aforesaid extent.
(B.N. KARIA, J) rakesh/ Page 13 of 13 Downloaded on : Sun Jan 16 22:44:51 IST 2022