Pathakprasad Zulanprasan @ ... vs Saty Guru Kabir Gyan Ashram
2021 Latest Caselaw 16066 Guj

     C/SCA/3841/2018                                     JUDGMENT DATED: 12/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3841 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                   NO

2     To be referred to the Reporter or not ?                                 NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                       NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                     NO
      of India or any order made thereunder ?

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             PATHAKPRASAD ZULANPRASAN @ SUBANPRASAD
                               Versus
               SATY GURU KABIR GYAN ASHRAM & 1 other(s)
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
MR SK PATEL(654) for the Respondent(s) No. 1
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                              Date : 12/10/2021

                              ORAL JUDGMENT

1. Learned advocate for the petitioner requested to permit

the petitioner to delete the respondent No.2-Bababhai

Padmnath Balkrishnadas from the cause title as suit was filed

against the trust i.e Saty Guru Kabir Gyan Ashram i.e.

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

respondent No.1 before the court below, and therefore,

respondent No.2 is not necessary party to decide the issue

involved in the present petition. Permission, as sought for,

stands granted. Petitioner is hereby permitted to delete the

name of the respondent No.2- Bababhai Padmnath

Balkrishnadas from the cause title. Necessary amendments

shall be carried out forthwith.

2. Rule returnable forthwith. Learned advocate Mr. S.K. Patel

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

No.1.

3. By preferring this petition, present petitioner, who is the

original plaintiff before the Trial Court in Regular Civil Suit No.

1789 of 1999, has challenged the judgment and order dated

05.01.2018 passed by learned Additional District Judge,

Vadodara in Civil Misc. Appeal No.132 of 2017 as well as the

order dated 21.08.2017 passed by the learned 2 nd Additional

Civil Judge, Vadodara in Civil Misc. Application No.3 of 2017

and further requested to the allow Civil Misc. Application No.3

of 2017.

4. Short facts of the present case may be summarized as

under:

The petitioner, who being a original plaintiff, preferred

Regular Civil Suit No.1789 of 1999 against the respondents for

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

a decree of adverse possession, declaration and permanent

injunction. After appearing the respondents before the Trial

Court and filing written statement, issues were framed and the

suit was pending for further hearing before the Trial Court on

05.12.2016. On the same day, learned advocate appearing for

the petitioner remained absent and trial court was pleased to

pass an order dismissing the suit for default. The petitioner

preferred restoration application under Order 9 Rule 9 of the

C.P.C. before the Civil Court at Vadodara on 04.01.2017, which

was registered as Civil Misc. Application No.3 of 2017. After

hearing the parties, learned 2nd Additional Civil Judge,

Vadodara, vide order dated 21.08.2017, rejected the said

application. Being dissatisfied with the impugned order

rejecting the application preferred by the petitioner under

Order 9 Rule 9 of the C.P.C., petitioner preferred an Appeal

under Order 43 Rule (1)(C) of the C.P.C. before the District

Court, Vadodara. As there was delay of 47 days in preferring

the said appeal before the District Court, the petitioner

preferred a delay condone of the application, which was

allowed by the Court. Civil Misc. Appeal No.132 of 2017

preferred by the petitioner was dismissed by the judgment and

order dated 05.01.2018, after hearing the parties. Hence, this

petition under Article 227 of the Constitution of India.

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

5. Heard learned advocate Mr. Jigar P. Raval for the

petitioner and learned advocate Mr. S.K. Patel for the

respondent.

6. It is submitted by the learned advocate for the petitioner

that before the Trial Court, dismissal order was passed in the

Suit on 05.12.2016. It was further submitted that advocate

engaged by the petitioner before the Trial Court in his diary

has mentioned that date of the suit was fixed on 06.12.2016,

and therefore, advocate could not remain present to conduct

the matter on 05.12.2016 and he appeared on 06.12.2016. On

that day, he came to know that matter was already dismissed

by the Court on 05.12.2016. It was further submitted that it

was a mistake on the part of the advocate before the Trial

Court by not remaining present, and therefore, suit was

dismissed for non prosecution. It is further submitted that

considering the explanation and facts of the case, Trial Court

as well as District Court ought to have allowed the application

filed by the petitioner under Order 9 Rule 9 of the C.P.C for

restoration of this suit. It is further submitted that petitioner is

aged about 85 years and not having good health. All the

relevant papers are handed over to the learned advocate for

conducting the matter before the Trial Court. That prompt

actions were taken by the petitioner after dismissal of the suit

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

on 05.12.2016 by filing an application under Order 9 Rule 9 of

the C.P.C. on 04.01.2017 without any delay. That in such kind

of issue liberal view should be taken by the court below. It is

further submitted that court should not require to take any

hyper technical view, but however, both the courts below have

rejected the prayer of the petitioner, which is contrary to the

facts and law. Hence, it was requested by learned advocate

appearing for the petitioner to allow this petition by quashing

and setting aside the impugned order dated 21.08.2017

passed in Civil Misc. Application No.3 of 2017 as well as order

dated 05.01.2018 passed by the learned Additional District

Judge, Vadodara in Civil Misc. Appeal No.132 of 2017.

7. Per contra, learned advocate for the respondent has

vehemently opposed the arguments advanced by learned

advocate for the petitioner and submitted that there was

constant absence of the advocate appearing for the petitioner

before the trial court in this suit. It is further submitted that

total eight times suit was adjourned after framing of issues on

21.03.2016. It was further submitted that the roznama also

clearly speaks that plaintiff remained absent though he had

been served with the notice and his advocate was also present

on that day i.e. 26.08.2016. That on 05.12.2016, neither the

plaintiff nor his advocate were remained present before the

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

court on 06.12.2016, and therefore, Trial Court has rightly

dismissed the suit for want of prosecution. It is further

submitted that on 30.08.2016 to 05.12.2016, apparently the

reason of misunderstanding of regarding date of hearing and

learned advocate appeared before the trial court on

06.12.2016, can not be a genuine reason. That plaintiff was

continuously absent as well as his advocate. As there was

willingfull negligent on the part of the petitioner, this Court

may not incline to grant the prayer made by the present

petitioner. Hence, it was requested by learned advocate

appearing from the respondent to dismiss the petition.

8. Having heard the submissions made by learned advocate

for the petitioner and learned advocate for the respondent, it

appears that Regular Civil Suit No. 1789 of 1999 was preferred

by the petitioner against the respondents claiming adverse

possession of the suit property as well as declaration and

permanent injunction. After appearing the respondents before

the trial court and filing the written statement, the trial court

was pleased to frame issues on 21.03.2016, and thereafter,

the suit was to be proceeded for recording evidence of the

plaintiff. If we consider the Rozkam dated 26.08.2016, it

appears that plaintiff remained absent however served with

notice. From 30.08.2016 to 05.12.2016, some adjournments

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

were also granted in the suit by the court but neither the

plaintiff nor his advocate remained present to proceed this

suit. On 05.12.2016, when the matter was adjourned for

recording the evidence, advocate appearing for the petitioner

was not present, and therefore, suit was dismissed by the trial

court for want of prosecution. As per the submissions made by

learned advocate for the petitioner that in the diary of the

advocate appearing before the trial court on behalf of the

petitioner, it was mentioned that next date of hearing was

fixed on 06.12.2016 and therefore, he could not remain

present before the trial court on 05.12.2016. Prima facie, it

appears that it was a impression on the part of the learned

advocate for the petitioner appearing before the trial court that

next date of hearing of the suit was fixed on 06.12.2016

instead of 05.12.2016. The learned Trial Court dismissed the

suit 05.12.2016 for want of prosecution in absence of learned

advocate appearing for the petitioner. Learned Additional

District Judge has also observed the nature of the suit filed by

the plaintiff before the trial court that it was a case of the

plaintiff to protect his possession, which was given to him by

the respondent/trust as a permissive user and petitioner was

serving in the trust and also on the basis of adverse

possession. It was further considered by the First Appellate

C/SCA/3841/2018 JUDGMENT DATED: 12/10/2021

Court, that the petitioner was not in service with the trust, and

therefore considering overall facts and length of the impugned

order and considering the nature of this suit, the first Appellate

court dismissed the Civil Misc. Appeal No.132 of 2017

preferred by the present petitioner. Such an observation on

merits made by the First Appellate Court would not proper for

dismissal of the prayer made by the petitioner in an Appeal

under Order 43 Rule 1(C) of the C.P.C. Such a hyper technical

view without giving any opportunity to the petitioner for

leading his evidence would not be permissible. Hence, this

Court is of the view that prayers made by the present

petitioner requires consideration.

9. Accordingly this petition is hereby allowed. The

impugned order dated 05.01.2018 passed by the learned

Additional District Judge in Civil Misc. Appeal No.132 of 2017

as well as order dated 21.08.2017 passed by learned 2 nd

Additional Civil Judge, Vadodara below Civil Misc. Application

No.3 of 2017 is hereby quashed and set aside. Civil Misc.

Application No.3 of 2017 shall be allowed. Considering the

length of time of filing the suit i.e. in the year of 1999, the trial

court shall expedite the hearing of the suit and dispose of the

same on merits giving an opportunity to either side preferably

within a period of six months from the date of receipt of this

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order. Rule is made absolute to the aforesaid extent.

10. The petitioner shall remain present before the Trial Court

for recording his evidence on 25.10.2021 without fail, failing

which, trial court would be free to proceed accordingly.

11. Petition is allowed with cost of Rs.5,000/-. Cost will be

paid by the petitioner to the respondent on or before the next

date before the trial court.

(B.N. KARIA, J) SUYASH