Gujarat High Court
Lh. Of Decd. Kanbi Devjibhai ... vs Thakkar Naranji Purshottam Of ... on 27 October, 2021
Bench: B.N. Karia
C/SCA/13109/2018 ORDER DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13109 of 2018
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 13109 of 2018
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LH. OF DECD. KANBI DEVJIBHAI DHANJI OF VADVA
Versus
THAKKAR NARANJI PURSHOTTAM OF GADHSHISA & 6 other(s)
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No.
1,1.1,1.1.1,1.1.4,1.2,1.3
MR SK PATEL(654) for the Petitioner(s) No.
1.1.1.1,1.1.1.2,1.1.1.3,1.1.2,1.1.3,1.2.1,1.2.2,1.2.3,1.2.4,1.2.5,1.3.1,1.3.2,1.3.
3
for the Respondent(s) No. 3.3,3.4,3.5
DS AFF.NOT FILED (R)(71) for the Respondent(s) No.
1,1.1,3,4,4.1,4.2,4.3,4.4,5,6,7
KUNAL M BHAVSAR(8166) for the Respondent(s) No.
4.1.1,4.1.2,4.1.3,4.1.4,4.2.1,4.3.1,4.3.2,4.3.3,4.4.1,4.4.2,5.1
NANAVATI AND CO.(7105) for the Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.1.6
RULE SERVED(64) for the Respondent(s) No. 2,3.1,3.2,4.2.2,4.2.3,5.2,5.3
UNSERVED EXPIRED (R)(69) for the Respondent(s) No. 6.1,6.2,7.1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 27/10/2021
ORAL ORDER
ORDER IN SPECIAL CIVIL APPLICATION NO. 13109 of
1. By preferring this petition, petitioner has prayed to quash and
set aside the order dated 30.06.2018 by learned Principal District
Judge, Kachchh at Bhuj below the application Exh-1/B-15 in Civil
Misc. Application No.14 of 2018 in I.R. No.673 of 2018 and allow
C/SCA/13109/2018 ORDER DATED: 27/10/2021
the present application.
2. Having heard learned advocates appearing for the respective
parties and the objections raised by learned advocate for the
respondents, it appears that present petitioners are the original
defendant Nos.1.1 to 1.3 (3). Regular Civil Suit No.34 of 1959 filed
by the respondent was allowed by the learned Additional Civil
Judge, Nakhatrana by judgment and decree dated 19.12.2017. It
appears that against the said judgment and decree passed by the Civil
Court on 19.12.2017, petitioners wanted to file an appeal, but they
failed to file it within prescribed time. It further appears that there
was a delay of 35 days in preferring an appeal, therefore, the present
petitioners filed Exh.1/B-15 in Civil Misc. Application No.14 of
2018 in I.R. No.673 of 2018, which was rejected. It further appears
that judgment and decree was passed on 19.12.2017 and petitioners
came to know about such judgment on 24.01.2018. As per the
submissions made by learned advocate for the petitioners, advocate
appearing from the petitioners was out of station as sister-in-law of
the advocate, who was conducting the case, was hospitalized at
Lucknow. Thereafter, advocate engaged by the petitioners along
with wife had to attend medical emergency at Lucknow, and
C/SCA/13109/2018 ORDER DATED: 27/10/2021
therefore, he had to visit his sister-in-law who was hosptialized at
Lucknow. It also appears that advocate appearing for the petitioners
returned back on 28.01.2018 from Lucknow. As he himself had ill
and was hospitalized at Bhuj, the circumstances beyond the control
on the part of the petitioners, they could not file an appeal within a
prescribed time limit i.e. up to 18.01.2018 but they were able to file
the appeal on 28.02.2018. Therefore, there was a delay of 35 days in
preferring the appeal against the judgment and decree passed in
Regular Civil Suit No.34 of 1959 on 19.12.2017. It also appears that
before the Trial Court, petitioners have produced necessary
documents such as Air Tickets from Ahmedabad to Delhi, Delhi to
Lucknow as well as test report issued by the Bhagat Laboratory in
favour of Mr. Mustaq Lothiya who was appearing for the petitioners
before the trial court. Prima facie, it appears that there was sufficient
reason that petitioners could not file their appeal before the District
Court in time as prescribed by under law of limitation.
3. For the reasons discussed above, present petition requires
consideration and same is allowed. Hence the order dated
30.06.2018 passed by learned Principal District Judge, Kachchh at
Bhuj below application Exh-1/B-15 in Civil Misc. Application
C/SCA/13109/2018 ORDER DATED: 27/10/2021
No.14 of 2018 in I.R. No.673 of 2018 stands quashed and set aside.
Rule is made absolute to the aforesaid extent.
4. Considering the pendecny of the suit since the year-1959, the
learned District Court shall expedite the hearing of the appeal likely
to be preferred by the present petitioners.
5. The order dated 27.08.2018 shall be continued for a further
period of two weeks from the date of passing of this order.
(B.N. KARIA, J)
ORDER IN CIVIL APPLICATION NO. 1 of 2019
In view of the order passed in Special Civil Appeal No.13109
of 2018, present application does not survive and accordingly,
disposed of.
(B.N. KARIA, J)
SUYASH
