(1.) The State of Gujarat has challenged in this appeal the impugned judgment and decree dated 12.3.1999 passed by the learned 5th Civil Judge (S.D.), Bharuch at Godhra in Special Civil Suit No. 14 of 1994 partly decreeing the suit of respondents-plaintiffs and awarding the compensation of Rs.99,800/- with interest @ 12% p.a. from the date of suit till its realisation.
(2.) The respondent No.l Original plaintiff No. 1 was serving as Junior Clerk in the court of JMFC Court at Halol. He was residing there in Government quarter No.2/18. There was a duppet for outlet of drain water which was required to be covered by a lid, but the same was not covered. Minor daughter aged two and half years, named Minaben of respondents -plaintiffs Nos. 1 and 2 fell down in duppet and died, therefore, the respondents- plaintiffs Nos.l and 2 filed Special Civil Suit No. 14 of 1994 before the trial court claiming compensation for Rs.2,31,000/- on the ground that it was the duty of the defendants to maintain the drainage and by not covering the outlet their minor daughter died. The learned Judge after appreciating oral as well as documentary evidence led before him came to the conclusion that the plaintiffs proved their case that due to negligence on the part of the defendants in not covering the drainage hole, their daughter Minaben fell in it and died. However, he was of the opinion that the claim of the plaintiffs claiming Ps.2,31,000/- was exorbitant and on facts they were entitled for only Rs. 99,800/- and accordingly the same was awarded.
(3.) From the order sheet of this matter, we find that initially this appeal was placed before the Bench consisting of Hon'ble M/s. Justice Y.B.Bhatt and H.H.Mehta on 30.8.2001. In absence of the learned counsel for the appellant, even in the second round, Their Lordships adjourned the matter to 13.9.2001 instead of dismissing the same for default. Once again when this matter was placed before Their Lordships on 1.10.2001, we find that the learned counsel for the appellants consistently remained absent even in second round when the matter was called out, therefore, Their Lordships dismissed the appeal for default. Thereafter, Misc. Civil Application No. 1790/01 was filed for restoration of the same and the application was granted in terms of para 2(B) subject to the condition that the costs of the other side quantified at Rs.500/- be deposited to the Registry may be permitted to be withdrawn by the respondents-plaintiffs.