Gujarat High Court
Motaji @ Mansingh Thakor vs Hiraben D/O Maganlal Panchal W/O ... on 30 July, 2025
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C/SCA/1720/2013 JUDGMENT DATED: 30/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1720 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MOTAJI @ MANSINGH THAKOR
Versus
HIRABEN D/O MAGANLAL PANCHAL W/O NAROTTAMDAS PANCHAL
SINCE DECESED THROUGH LEGAL HEIRS & ANR.
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Appearance:
MR VM DHOTRE(1089) for the Petitioner(s) No. 1
MR. MAYUR V DHOTARE(7019) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Mayur V. Dhotare for the
petitioner. Though served, none appears for the respondent.
2. The present writ application is filed under Article 227 of the
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Constitution of India, seeking the following reliefs:
"A. To issue a Writ of Certiorari or any other appropriate writ, order
or direction in the nature of certiorari by quashing and setting aside
the Order dated 24.01.2013 passed below Exh.1, delay condonation
application being Misc. Application No.387 of 2012 and passed by the
Small Causes Court, Ahmedabad in the interest of justice.
B. Pending the admission, final hearing and disposal of this petition be
pleased to stay in the interest of justice the further proceedings in
Darkhast / Execution Application No.150 of 2012 pending before the
Small Causes Court, Ahmedabad filed by the respondent seeking the
execution of the Judgment and Decree dated 16.04.2012 rendered in
H.R.P Suit No.32 of 2010, as the court below has passed an order for
issuance of possession warrant & Jangam warrant on 31.01.2013 & be
pleased to stay the further operation & implementation of the order
dated 31.01.2013 protecting the possession of the petitioner of the suit
premises in the interest of justice.
C. To provide for the cost of this petition.
D. To pass any other and further order/s as may be deemed fit and
proper in the facts and circumstances of the case."
3. Learned Advocate Mr. Dhotare would state that the petitioner
herein was the original defendant of H.R.P. Suit No. 32 of
2010 filed by the respondent seeking eviction of petitioner
from rented premises, which came to be decreed ex-parte
against the petitioner and having received the summons in
the execution proceedings instituted by the respondent, for
the first time, the petitioner came to know about such
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institution of summary suit and the decree in question.
4. Learned Advocate Mr. Dhotare would further state that the
aforesaid eviction suit came to be filed by the respondent
against the petitioner, wherein no summons was received by
the petitioner.
5. Learned Advocate Mr. Dhotare would further state that as
there was delay of around 146 days in filing the application
under Order 9, Rule 13 of the CPC, an impugned delay
application came to be filed by the petitioner, which was
rejected by the Trial Court, against which the present writ
application is filed.
6. Learned Advocate Mr. Dhotare would submit that there are
specific averments made in para-2 of the impugned delay
application that the summons of H.R.P. Suit No. 32 of 2010
was never served upon the petitioner and he came to know
about passing of such an eviction decree and also regarding
the eviction suit when he received notice in the execution
proceedings and such averment is remained uncontroverted
by the respondent, having not filed any reply.
7. Learned Advocate Mr. Dhotare would further submit that
from the bare reading of the impugned order, nowhere such
aspect has been considered by the Trial Court while
adjudicating the impugned application.
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8. Learned Advocate Mr. Dhotare would further submit that
when the summons of the eviction suit was never received by
the petitioner, it amounts to sufficient cause for the
petitioner of not having information about the institution of
the suit by the respondent and in that factual scenario, the
delay occurred in filing the restoration application was
required to be condoned by the Trial Court, which is not
done. It is submitted that trial Court has committed serious
error of law while rejecting delay application.
9. Learned Advocate Mr. Dhotare would further submit that the
Trial Court has failed to consider the factual aspects narrated
in the delay application while passing the impugned order
and as such the impugned order is non-speaking one and is
required to be quashed and set aside by this Court in the
interest of justice.
10. Having heard the learned Advocate Mr. Dhotare appearing
for the petitioner, it appears that specific averments were
made in para-2 of the impugned delay application that the
petitioner was not served with the summons/notice of the
aforesaid eviction suit instituted by the respondent. The
petitioner came to know about such suit/ex-parte decree
passed against him only when he received notice in the
execution proceedings. This aspect was not at all looked into
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by the Trial Court when it adjudicated the impugned delay
application.
11. When the petitioner had not received the summons of the
eviction suit and later on, the suit decreed against him, it
would be in violation of the principles of natural justice. In
that view of the matter, the delay occurred in filing the
restoration application under Order 9, Rule 13 of CPC
required to have been condoned by the Trial Court. Having
not done so by trial Court, committed a gross error of law
which goes to root of the matter.
12. By now, it is well-settled legal position of law that "sufficient
cause" requires to be construed liberally and in a case like
the present one, when petitioner never received
summons/notice of eviction suit and this fact was never
controverted by the respondent by filing any reply, itself
constitute sufficient cause for not filing restoration
application in time and in fact may be considered as ground
to entertain an application filed under Order 9 Rule 13 of
CPC.
13. The Trial Court has not taken pains to verify such fact from
the record of the suit, which was easily made available to it.
It appears that trial Court in very caviler fashion dealt with
the impugned delay application. It is also well settled legal
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position that unless there is malafide, gross negligence,
dilatory tactics and or any misstatement made by applicant
seeking condondation of delay, ordinarily, delay application
should be allowed to advance justice to the parties and
thereby, Court can decide lis between the parties on merit.
This Court would not find any exception in the case on hand.
In light of said uncontroverted fact, the delay of 146 days
occurred in filing the restoration application deserves to be
condoned, which is hereby condoned.
14. In view of aforesaid facts and circumstances and the
observations and reasons made hereinabove, the present writ
application requires to be allowed. Accordingly, the
impugned order dated 24th January 2013, passed by the
Small Causes Court, Ahmedabad, in Delay Condonation
Application No. 387 of 2012 (CMA-SC-387/2012), is hereby
quashed and set aside. Consequently, the impugned delay
application, being CMA 387 of 2012 (CMA-SC-387/2012), is
hereby allowed in terms of para 4(A) of the said delay
application whereby, delay of 146 days in filing the
restoration application is hereby condoned.
15. In view of above, now, trial Court requires to heard and
adjudicate the restoration application on its own merits as
early as possible, albeit after giving an opportunity of hearing
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to parties to such application.
16. Thus, present writ application is hereby allowed. Interim
relief stands vacated forthwith. Rule is made absolute
accordingly.
(MAULIK J.SHELAT,J)
Nilesh
