Patel Hiteshkumar Natwarlal vs Govindbhai Shankarbhai Patel
2021 Latest Caselaw 15910 Guj

      C/SCA/12471/2019                                  ORDER DATED: 08/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12471 of 2019

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                         PATEL HITESHKUMAR NATWARLAL
                                     Versus
                         GOVINDBHAI SHANKARBHAI 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. 2,3,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,4
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     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                      Date : 08/10/2021
                       ORAL ORDER

1. Rule returnable forthwith. Learned advocate Mr. Rajendra D.

Jadhav waives service of notice of rule for and on behalf of respondent

Nos.2, 3 and 5.

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.13 of 2014 in Restoration application in Special Civil Suit No.553 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 of Special Civil Suit

No.553 of 2008, which is filed for the cancelation of sale deed and

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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.303 situated at Rudatal Village for Rs.47,008/- dated 7.7.1995

without possession. As per condition, respondent Nos.1 and 4 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 10.5.1996, possession of land was given against

the full amount of Rs.1,95,000/- 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 4 had

executed sale deed in favour of opponent no.5 in the year 2004 without

informing the plaintiff. In April 2007, plaintiff had called the respondent

Nos.1 and 4 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 Civil Suit No.553 of 2008. On 13.05.2014, the

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

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knowledge regarding the date of hearing of next date fixed on

11.07.2014. 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 and the 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. 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.13 of 2014 was filed. Learned Principle

Senior Civil Judge, Viramgam rejected the condonation of delay

application filed for restoring Special Civil Suit No.553 of 2008 mainly

on the ground that petitioners were trying to delay the suit as issues were

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framed on 07.04.2014. Hence this petition.

4. Heard learned advocate for the petitioners and learned advocate for

the respondent Nos.2, 3 and 5.

5. Learned advocate for the petitioners submits that delay has

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

circumstances, delay has 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 punish 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. 13 of 2014 in restoration application of Special Civil Suit No.553 of

2008.

6. Learned advocate for the respondents strongly objected the

arguments advanced by learned advocate for the petitioners and

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submitted that Special Civil Suit No.553 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.13 of 2014 with delay of 44 days,

however, even in pending the restoration application, 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

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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 preferd 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 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.13 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.553

of 2008 was filed by the present petitioners for cancellation of sale deed

and specific performance of the agreement. As alleged in the plaint,

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respondent no.1 had executed one registered agreement to sell for Survey

No.303 of Rudatal Village, against Rs.47,008/- dated 07.07.1995 without

possession and respondent nos.1 and 4 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 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

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 nos.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 the sale deed by them in

favour of opponent no.5 and hence, for cancellation of sale deed, Special

Civil Suit No.553 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

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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

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.13 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.553 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

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not found sufficient by the Trial Court. It is not in dispute that the issues

were framed by the Trial Court on 31.03.2014, 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

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.

C/SCA/12471/2019 ORDER DATED: 08/10/2021

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.13 of 2014 in Restoration Application of Special Civil

Suit No.553 of 2008 shall be quashed and set aside. Delay prayed by the

petitioners in CMA No.13 of 2014 shall be condoned.

9. With the above observations, present petition is hereby allowed.

Rule is made absolute accordingly.

(B.N. KARIA, J) rakesh/