Mahesh Manilal Patel Through Poa ... vs Dipikaben Ramabhai Tadavi
2023 Latest Caselaw 8017 Guj

                                                                                  NEUTRAL CITATION




      C/SCA/16368/2023                           ORDER DATED: 02/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16368 of 2023

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     MAHESH MANILAL PATEL THROUGH POA PURVIBEN MAHESHBHAI
                             PATEL
                             Versus
                   DIPIKABEN RAMABHAI TADAVI
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                             Date : 02/11/2023

                              ORAL ORDER

1. By way of this petition, the petitioner has prays to

quash and set aside the order dated 16.1.2023

passed in Civil Misc. Application No.19 of 2021

and further be pleased to allow the application for

condonation of delay in preferring restoration

application filed for restoration application being

under Order 9 Rule 13 of the Code of Civil

Procedure filed for setting aside of ex-parte

decree passed in Regular Civil Suit No.343 of

2020.

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C/SCA/16368/2023 ORDER DATED: 02/11/2023

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2. Heard learned advocate Mr. Vimal A. Purohit for

the petitioner. Perused the record.

3. When this matter was taken up for hearing it was

pointed out by the learned advocate for the

petitioner that for the judgment and decree

passed in Regular Civil Suit No.343 of 2000, an

appeal bearing No.18 of 2008 was preferred by

the petitioner before the learned District Judge,

Vadodara and the said appeal came to be

dismissed for default by the learned District

Judge, Vadodara on 17.11.2016. Against the said

order, Civil Misc. Application (For Condonation of

Delay) No.114 of 2017 came to be filed. The

same came to be rejected by the learned District

Judge, Vadodara on 27.10.2017. Against which

the Special Civil Application No.16651 of 2023 is

filed.

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C/SCA/16368/2023 ORDER DATED: 02/11/2023

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4. Learned advocate for the petitioner has further

submitted that against the judgment and decree

passed in Regular Civil Suit No.343 of 2000

passed by the learned 4th Additional Civil Judge,

Vadodara on 5.5.2000, the present petitioner

preferred an application under Order 9 - Rule 13

of the Code of Civil Procedure for restoration of

the said suit. The same came to be dismissed for

default by the learned 19th Additional Senior Civil

Judge, Vadodara on 19.6.2017. Against which,

Civil Misc. Application No.286 of 2018 was filed by

the present petitioner which came to be

dismissed on 13.3.2020 by the learned 19 th

Additional Senior Civil Judge, Vadodara. Against

the said order, Civil Misc. Application No.19 of

2021 came to be preferred by the petitioner

before the learned District Judge, Vadodara. The

said application came to be dismissed on

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C/SCA/16368/2023 ORDER DATED: 02/11/2023

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16.1.2023 on the ground that the petitioner has

already availed the remedy of appeal before the

District Court, Vadodara. Against the said order,

the present petition being SCA No.16651 of 2023

is filed.

5. It is further submitted that Special Civil

Application No.16651 of 2023 has been filed by

the present petitioner against the order of

rejection of delay condonation application No.114

of 2017 by the learned District Judge, Vadodara.

6. It is further submitted by the learned advocate for

the petitioner, upon instructions from his client,

seeks permission to withdraw the present petition

being Special Civil Application No.16368 of 2023.

It is further submitted that upon withdrawal of the

petition, the rights and contentions of the present

petitioner may not be affected and all the

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C/SCA/16368/2023 ORDER DATED: 02/11/2023

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contentions and submissions may be kept open

so far as Special Civil Application No.16651 of

2023.

7. Since the petitioner cannot avail two remedies for

the same order, Special Civil Application

No.16368 of 2023 is permitted to be withdrawn

with a specific observation that all the

contentions and grievances of the petitioner are

left open and the petitioner is at liberty to raise

all the available contentions under the law in

Special Civil Application No.16651 of 2023. It is

further observed that withdrawal of Special Civil

Application No.16368 of 2023 would not render

the petitioner remedy-less in view of the fact that

the petitioner is permitted to raise all the

available legal contentions in Special Civil

Application No.16651 of 2023.

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C/SCA/16368/2023 ORDER DATED: 02/11/2023

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8. With the above observations, the present petition

being Special Civil Application No.16368 of 2023

is permitted to be withdrawn, as prayed for. The

petition stands disposed of as withdrawn. No

order as to costs.

9. The Registry is directed to place copy of this

order in Special Civil Application No.16651 of

2023.

(D. M. DESAI,J) VATSAL