Gujarat High Court
Legal Heirs Of Sanghadia Karshandas ... vs Patel Prahladji Kalidas Ni Pedhi on 31 January, 2024
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C/SCA/5078/2021 ORDER DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5078 of 2021
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LEGAL HEIRS OF SANGHADIA KARSHANDAS KHIMJIBHAI
Versus
PATEL PRAHLADJI KALIDAS NI PEDHI
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Appearance:
CHETANKUMAR V DARJI(9309) for the Petitioner(s) No. 1
for the Respondent(s) No. 3,3.2
DELETED for the Respondent(s) No. 3.2.2
GIRISH K PATEL(2770) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3.1,3.2.1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/01/2024
ORAL ORDER
1. The present petition is filed for the following
prayers:
"7(A) xxx
(B) Your Lordship may be pleased to allow this Special Civil
Application by issuing appropriate writ, order or direction for
quashing and setting aside the impugned judgment and
order dated 01/02/2020 passed by the Learned Additional
Civil Judge, Viramgam in Civil Misc.Appl.No.7 of 2018
(Annexed at Annexure-A), in the interest of justice.
(C) xxxx"
2. Heard learned advocate Mr.Darji for the petitioner
and learned advocate Mr.Patel for respondent nos.1 and 2.
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3. Learned advocate Mr.Darji for the petitioner has
submitted that the restoration application which is numbered
as Civil Misc.Application No.7 of 2018 for restoring Regular
Civil Suit No.23 of 2008 which was dismissed for want of
appearance of plaintiff under the provisions of Order 9 Rule
3 of Civil Procedure Code (`CPC' for short), came to be
rejected. He has further submitted that the said order passed
by the learned court below are apparently erroneous,
improper and without considering the material available on
the record. He has further submitted that the petitioner has
made out sufficient cause as required under the provisions of
law and the learned trial court has taken very hyper
technical view of the matter by observing that no application
for adjournment is filed as provided under the law in Order
17 Rule 1 of CPC and the plaintiff has remained negligent.
Therefore, the learned trial court has dismissed the suit.
Thereafter, while considering the application for restoration,
the learned trial court has not dealt with these aspects
whereby the present petitioner has given explanation about
his absence and erroneously held that no sufficient cause is
shown for non-appearance of the plaintiff as well as learned
advocate for the plaintiff and dismissed the suit by exercising
powers under Order 9 Rule 4 of CPC read with Rule 3 read
with Section 151. Therefore, considering the scope of Order 9
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Rule 4 as well as Order 9 Rule 3 of CPC read with Section
151 of CPC, when the sufficient cause is made out by giving
proper explanation in the restoration application, the learned
trial court has committed serious error in dismissing the said
restoration application. He has further submitted that when
the sufficient cause is made out, other findings are irrelevant
for deciding such restoration. He has further submitted that
no prejudice will be caused if the matter shall be proceeded
by restoring the suit on merits within a time barred frame
and matter ultimately should be decided on merits instead of
resorting to hyper technical approach by the courts. Learned
advocate, therefore, prays to allow this petition.
4. Learned advocate Mr.Patel for the respondents has
strongly opposed the submissions made at the bar, and has
submitted that the learned trial court, as such, has not
committed any error in dismissing the suit as well as
rejecting the restoration application. However, he has
submitted that the appropriate order may be passed after
considering the totality of facts and circumstances.
5. I have considered the rival submissions and also
perused the impugned order passed by the learned trial
court.
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6. The provisions of Order 9 Rule 3 and Order 9
Rule 4 of CPC read as under:
"3. Where neither party appears suit to be dismissed.--
Where neither party appears when the suit is called on for
hearing, the court may make an order that the suit be
dismissed.
4. Plaintiff may bring fresh suit or Court may restore suit
to file.--Where a suit is dismissed under rule 2 or rule 3,
the plaintiff may (subject to the law of limitation) bring a
fresh suit; or he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was
sufficient cause for [such failure as is referred to in rule 2],
or for his non-appearance, as the case may be, the Court
shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit."
7. On perusal of the impugned order, it transpires
that the learned trial court has taken very stringent view of
the matter by observing that the plaintiff has disastrously
failed to appear before the court on 6.12.2017, 24.1.2018,
23.2.2018 and 5.4.2018, and looking to the age of the Regular
Civil Suit which is of year 2008 and the issues were also
framed on 26.4.2017, thereafter the notice to adduce evidence
was also caused to be served upon the plaintiff on 16.5.2017
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and since then the matter stood for adducing the evidence on
the part of the plaintiff and further observing that inspite of
the mandate not to adjourn the matter more than three
times to a party during hearing of the suit as Order 17 Rule
1 of CPC, the plaintiff has remained negligent. This
observation of the learned trial court is very hypertechnical.
8. Order 17 Rule 1 of CPC reads as under:
"1. Court may grant time and adjourn hearing.-- 1 [(1) The
court may, if sufficient cause is shown, at any stage of the
suit grant time to the parties or to any of them, and may
from time to time adjourn the hearing of the suit for
reasons to be recorded in writing:
Provided that no such adjournment shall be granted more
than three time to a party during hearing of the suit."
9. This provisions cannot be construed as a
mandatory provision. In the given facts and circumstances,
the court may consider such provision by taking stringent
view but looking to the facts of the present case, it cannot
be said that the plaintiff can get any favour by remaining
negligent and by not attending court proceedings. Merely
because the learned advocate for the plaintiff could not
remain present on a particular date, the court has dismissed
the suit under Order 9 Rule 3 of CPC, which prima facie is
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a very harsh order. When the petitioner has furnished
sufficient cause, though to some extent he has remained
negligent, the proceedings of the parties which is pending
since year 2008 should not be frustrated by taking hyper
technical view of the matter. Instead of that, the learned
trial court ought to have granted opportunity to the parties
to proceed with the suit on merits by directing the parties to
cooperate in the proceedings of the suit which is not done by
the court below.
10. Therefore, considering the totality of the facts and
circumstances of the present case and considering the fact
that this is a fit case where one more opportunity is
required to be granted to the plaintiff to proceed with the
proceeding of the suit on merits by putting some stringent
condition and by imposing cost, the impugned judgment and
award passed by the learned trial court below dated 1.2.2020
by the learned Additional Civil Judge, Viramgam in Civil
Miscellaneous Application No.7 of 2018 is quashed and set
aside on condition that the petitioner shall pay and amount
of Rs.20,000/- towards cost to the respondent within two
weeks from today by A/c payee cheque and xerox copy of the
said cheque shall be produced before the learned trial court.
On such production, the matter shall be restored to its
original number. The learned trial court is directed to decide
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the suit proceeding as expeditiously as possible, preferably on
or before 31.12.2024 in accordance with law by giving proper
opportunity to the parties.
(SANDEEP N. BHATT,J)
SRILATHA
