CHANDRAKANT HARIBHAI PANCHAL Vs. VASANSTBHAI NATVARLAL SHAH

JUDGEMENT

(1.) THE applicants?original plaintiffs have, by way of the present Revision Application filed under Section 115 of the Code of Civil Procedure, challenged legality of the order dated 30.07.2004 passed by the learned Judge, Court No.12, City Civil Court, Ahmedabad below Exh.1 in Civil Misc. Application No.507 of 2002 whereby, the lower Court had rejected the application seeking condonation of delay and application for restoration of the civil suit.

(2.) THE short facts giving rise to the present Revision Application are that the applicants-plaintiffs had filed a suit being Civil Suit No.6051 of 1997 in the City Civil and Sessions Court, Ahmedabad seeking specific performance of the agreement dated 08.05.1994 in respect of the suit property being Flat No.D/2 admeasuring 100 sq.yards in Russian Colony, F.P. No.343 Paiki, Ellisbridge Ward ? A/1, Ahmedabad (hereinafter referred to as the 'suit property') executed by the present respondents (defendants). THE said suit came to be dismissed for want of prosecution by order dated 19.10.2000 passed by the learned (Aux.) Chamber Judge, City Civil Court, Ahmedabad. It appears that the plaintiffs were unaware about the said dismissal of the suit and when they came to know about the same, filed Misc. Civil Application No.507 of 2002 on 18.09.2002 for restoration of the suit which was dismissed for default, and also for condonation of delay which had occurred in filing the said application for restoration. THE said Civil Misc. Application No.507 of 2002 came to be dismissed by the learned Judge, Court No.12, City Civil Court, Ahmedabad vide order dated 30.07.2004. Being aggrieved by the said order, the applicants-plaintiffs have filed the present proceedings under Section 115 of the Code of Civil Procedure.

(3.) HAVING regard to the submissions made by the learned advocates for the parties and the documents on record, more particularly, the impugned order, it clearly transpires that the suit of the plaintiffs came to be dismissed for default as the concerned advocate appearing for the plaintiffs did not attend the suit and did not remove the office objections raised in the suit. Not only that, even after the dismissal of the suit, the said advocate did not inform the plaintiffs and, therefore, the plaintiffs were absolutely unaware about the dismissal of the suit. It was also stated by the plaintiffs in the application seeking restoration of the suit that when they came to know about the said dismissal of the suit, they applied for the certified copies of the proceedings and had come to know that the concerned advocate appearing for them had not paid process fees and had not removed the office objections raised by the Registry, which had resulted into dismissal of the suit. HAVING regard to the facts and averments made by the plaintiffs on affidavit, it clearly transpires that there was sheer negligence and carelessness on the part of the learned advocate appearing for the plaintiffs at the relevant time. It cannot be gainsaid that the party should not be made to suffer for the negligence and carelessness of the advocate. The lower Court ought to have considered the said reasons as the sufficient cause for condonation of delay and for the restoration of the suit in the interest of justice. It appears that the lower Court unfortunately dismissed the application on technical grounds without considering the negligence of the then learned advocate for the plaintiffs. The said order being perverse, leading to miscarriage of justice, deserves to be set aside.