Patel Hiteshkumar Natwarlal vs Somabhai Gadidas Patel
2021 Latest Caselaw 15911 Guj

      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
==========================================================
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.

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

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

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

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

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,

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

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

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

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

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.

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

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/