Gujarat High Court
Motaji @ Mansingh Thakor vs Hiraben D/O Maganlal Panchal W/O ... on 30 July, 2025
NEUTRAL CITATION
C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1720 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MOTAJI @ MANSINGH THAKOR
Versus
HIRABEN D/O MAGANLAL PANCHAL W/O NAROTTAMDAS PANCHAL
SINCE DECESED THROUGH LEGAL HEIRS & ANR.
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Appearance:
MR VM DHOTRE(1089) for the Petitioner(s) No. 1
MR. MAYUR V DHOTARE(7019) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Mayur V. Dhotare for the petitioner. Though served, none appears for the respondent.
2. The present writ application is filed under Article 227 of the Page 1 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025 NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined Constitution of India, seeking the following reliefs:
"A. To issue a Writ of Certiorari or any other appropriate writ, order or direction in the nature of certiorari by quashing and setting aside the Order dated 24.01.2013 passed below Exh.1, delay condonation application being Misc. Application No.387 of 2012 and passed by the Small Causes Court, Ahmedabad in the interest of justice.
B. Pending the admission, final hearing and disposal of this petition be pleased to stay in the interest of justice the further proceedings in Darkhast / Execution Application No.150 of 2012 pending before the Small Causes Court, Ahmedabad filed by the respondent seeking the execution of the Judgment and Decree dated 16.04.2012 rendered in H.R.P Suit No.32 of 2010, as the court below has passed an order for issuance of possession warrant & Jangam warrant on 31.01.2013 & be pleased to stay the further operation & implementation of the order dated 31.01.2013 protecting the possession of the petitioner of the suit premises in the interest of justice.
C. To provide for the cost of this petition.
D. To pass any other and further order/s as may be deemed fit and proper in the facts and circumstances of the case."
3. Learned Advocate Mr. Dhotare would state that the petitioner herein was the original defendant of H.R.P. Suit No. 32 of 2010 filed by the respondent seeking eviction of petitioner from rented premises, which came to be decreed ex-parte against the petitioner and having received the summons in the execution proceedings instituted by the respondent, for the first time, the petitioner came to know about such Page 2 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025 NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined institution of summary suit and the decree in question.
4. Learned Advocate Mr. Dhotare would further state that the aforesaid eviction suit came to be filed by the respondent against the petitioner, wherein no summons was received by the petitioner.
5. Learned Advocate Mr. Dhotare would further state that as there was delay of around 146 days in filing the application under Order 9, Rule 13 of the CPC, an impugned delay application came to be filed by the petitioner, which was rejected by the Trial Court, against which the present writ application is filed.
6. Learned Advocate Mr. Dhotare would submit that there are specific averments made in para-2 of the impugned delay application that the summons of H.R.P. Suit No. 32 of 2010 was never served upon the petitioner and he came to know about passing of such an eviction decree and also regarding the eviction suit when he received notice in the execution proceedings and such averment is remained uncontroverted by the respondent, having not filed any reply.
7. Learned Advocate Mr. Dhotare would further submit that from the bare reading of the impugned order, nowhere such aspect has been considered by the Trial Court while adjudicating the impugned application. Page 3 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025
NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined
8. Learned Advocate Mr. Dhotare would further submit that when the summons of the eviction suit was never received by the petitioner, it amounts to sufficient cause for the petitioner of not having information about the institution of the suit by the respondent and in that factual scenario, the delay occurred in filing the restoration application was required to be condoned by the Trial Court, which is not done. It is submitted that trial Court has committed serious error of law while rejecting delay application.
9. Learned Advocate Mr. Dhotare would further submit that the Trial Court has failed to consider the factual aspects narrated in the delay application while passing the impugned order and as such the impugned order is non-speaking one and is required to be quashed and set aside by this Court in the interest of justice.
10. Having heard the learned Advocate Mr. Dhotare appearing for the petitioner, it appears that specific averments were made in para-2 of the impugned delay application that the petitioner was not served with the summons/notice of the aforesaid eviction suit instituted by the respondent. The petitioner came to know about such suit/ex-parte decree passed against him only when he received notice in the execution proceedings. This aspect was not at all looked into Page 4 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025 NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined by the Trial Court when it adjudicated the impugned delay application.
11. When the petitioner had not received the summons of the eviction suit and later on, the suit decreed against him, it would be in violation of the principles of natural justice. In that view of the matter, the delay occurred in filing the restoration application under Order 9, Rule 13 of CPC required to have been condoned by the Trial Court. Having not done so by trial Court, committed a gross error of law which goes to root of the matter.
12. By now, it is well-settled legal position of law that "sufficient cause" requires to be construed liberally and in a case like the present one, when petitioner never received summons/notice of eviction suit and this fact was never controverted by the respondent by filing any reply, itself constitute sufficient cause for not filing restoration application in time and in fact may be considered as ground to entertain an application filed under Order 9 Rule 13 of CPC.
13. The Trial Court has not taken pains to verify such fact from the record of the suit, which was easily made available to it. It appears that trial Court in very caviler fashion dealt with the impugned delay application. It is also well settled legal Page 5 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025 NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined position that unless there is malafide, gross negligence, dilatory tactics and or any misstatement made by applicant seeking condondation of delay, ordinarily, delay application should be allowed to advance justice to the parties and thereby, Court can decide lis between the parties on merit. This Court would not find any exception in the case on hand. In light of said uncontroverted fact, the delay of 146 days occurred in filing the restoration application deserves to be condoned, which is hereby condoned.
14. In view of aforesaid facts and circumstances and the observations and reasons made hereinabove, the present writ application requires to be allowed. Accordingly, the impugned order dated 24th January 2013, passed by the Small Causes Court, Ahmedabad, in Delay Condonation Application No. 387 of 2012 (CMA-SC-387/2012), is hereby quashed and set aside. Consequently, the impugned delay application, being CMA 387 of 2012 (CMA-SC-387/2012), is hereby allowed in terms of para 4(A) of the said delay application whereby, delay of 146 days in filing the restoration application is hereby condoned.
15. In view of above, now, trial Court requires to heard and adjudicate the restoration application on its own merits as early as possible, albeit after giving an opportunity of hearing Page 6 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025 NEUTRAL CITATION C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025 undefined to parties to such application.
16. Thus, present writ application is hereby allowed. Interim relief stands vacated forthwith. Rule is made absolute accordingly.
(MAULIK J.SHELAT,J) Nilesh Page 7 of 7 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:43:33 IST 2025