NEUTRAL CITATION
C/SCA/16368/2023 ORDER DATED: 02/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16368 of 2023
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MAHESH MANILAL PATEL THROUGH POA PURVIBEN MAHESHBHAI
PATEL
Versus
DIPIKABEN RAMABHAI TADAVI
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/11/2023
ORAL ORDER
1. By way of this petition, the petitioner has prays to quash and set aside the order dated 16.1.2023 passed in Civil Misc. Application No.19 of 2021 and further be pleased to allow the application for condonation of delay in preferring restoration application filed for restoration application being under Order 9 Rule 13 of the Code of Civil Procedure filed for setting aside of ex-parte decree passed in Regular Civil Suit No.343 of 2020.
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2. Heard learned advocate Mr. Vimal A. Purohit for the petitioner. Perused the record.
3. When this matter was taken up for hearing it was pointed out by the learned advocate for the petitioner that for the judgment and decree passed in Regular Civil Suit No.343 of 2000, an appeal bearing No.18 of 2008 was preferred by the petitioner before the learned District Judge, Vadodara and the said appeal came to be dismissed for default by the learned District Judge, Vadodara on 17.11.2016. Against the said order, Civil Misc. Application (For Condonation of Delay) No.114 of 2017 came to be filed. The same came to be rejected by the learned District Judge, Vadodara on 27.10.2017. Against which the Special Civil Application No.16651 of 2023 is filed.
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4. Learned advocate for the petitioner has further submitted that against the judgment and decree passed in Regular Civil Suit No.343 of 2000 passed by the learned 4th Additional Civil Judge, Vadodara on 5.5.2000, the present petitioner preferred an application under Order 9 - Rule 13 of the Code of Civil Procedure for restoration of the said suit. The same came to be dismissed for default by the learned 19th Additional Senior Civil Judge, Vadodara on 19.6.2017. Against which, Civil Misc. Application No.286 of 2018 was filed by the present petitioner which came to be dismissed on 13.3.2020 by the learned 19 th Additional Senior Civil Judge, Vadodara. Against the said order, Civil Misc. Application No.19 of 2021 came to be preferred by the petitioner before the learned District Judge, Vadodara. The said application came to be dismissed on Page 3 of 6 Downloaded on : Wed Nov 08 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/16368/2023 ORDER DATED: 02/11/2023 undefined 16.1.2023 on the ground that the petitioner has already availed the remedy of appeal before the District Court, Vadodara. Against the said order, the present petition being SCA No.16651 of 2023 is filed.
5. It is further submitted that Special Civil Application No.16651 of 2023 has been filed by the present petitioner against the order of rejection of delay condonation application No.114 of 2017 by the learned District Judge, Vadodara.
6. It is further submitted by the learned advocate for the petitioner, upon instructions from his client, seeks permission to withdraw the present petition being Special Civil Application No.16368 of 2023. It is further submitted that upon withdrawal of the petition, the rights and contentions of the present petitioner may not be affected and all the Page 4 of 6 Downloaded on : Wed Nov 08 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/16368/2023 ORDER DATED: 02/11/2023 undefined contentions and submissions may be kept open so far as Special Civil Application No.16651 of 2023.
7. Since the petitioner cannot avail two remedies for the same order, Special Civil Application No.16368 of 2023 is permitted to be withdrawn with a specific observation that all the contentions and grievances of the petitioner are left open and the petitioner is at liberty to raise all the available contentions under the law in Special Civil Application No.16651 of 2023. It is further observed that withdrawal of Special Civil Application No.16368 of 2023 would not render the petitioner remedy-less in view of the fact that the petitioner is permitted to raise all the available legal contentions in Special Civil Application No.16651 of 2023.
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8. With the above observations, the present petition being Special Civil Application No.16368 of 2023 is permitted to be withdrawn, as prayed for. The petition stands disposed of as withdrawn. No order as to costs.
9. The Registry is directed to place copy of this order in Special Civil Application No.16651 of 2023.
(D. M. DESAI,J) VATSAL Page 6 of 6 Downloaded on : Wed Nov 08 20:32:47 IST 2023