GOSAI RAMESHBHARTHI TRIKBHARTHI Vs. KIRTIKUMAR C PATEL

JUDGEMENT

(1.) PRESENT Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinoriginal plaintiff original applicant to quash and set aside the impugned order passed by the learned Civil Judge (S.D.), Gandhinagar dated 27.8.1997 passed in Civil Miscellaneous Application No.43 of 1996 and consequently to restore the Special Civil Suit No.35 of 1996 on the file of learned Civil Judge (S.D.), Gandhinagar.

(2.) THE petitioner hereinoriginal applicant preferred Special Civil Suit No.35 of 1996 in the Court of learned Civil Judge (S.D.), Gandhinagar for specific performance of the agreement to sell executed by the original defendants. That the summons of the said suit were served upon the original defendants and they appeared in the suit through their advocate. It appears that and it is the case on behalf of the applicant hereinoriginal plaintiff that the defendants respondents herein agreed to execute the sale deed with respect to the disputed property in question on or before 27.8.1996 and therefore, relying upon the said representation the petitioner hereinoriginal plaintiff submitted the purshis before the learned trial Court permitting him to withdraw the said suit unconditionally. That the learned Civil Judge (S.D.), Gandhinagar disposed of the said suit as withdrawn considering the purshis submitted at Exh.17 in the said suit. It is the case of the applicant that thereafter despite the notice given to the defendants, they did not execute the sale deed as agreed (which is disputed by Shri Patel, learned advocate for the respondentsdefendants) and therefore, the applicant submitted the Miscellaneous Application No.43 of 1996 in the Court of Civil Judge (S.D, Gandhinagar granting the permission to restore the aforesaid suit to file and consider the same on merits. The said application has been dismissed by the learned trial Court mainly on the ground that as suit was withdrawn unconditionally, in exercise of powers under Section 151 of the Code of Civil Procedure, such an application is not maintainable.

(3.) IN view of the above, this Court is not assigning any further reasons while quashing and setting aside the order passed by the learned trial Court and remanding the matter to the learned trial Court for deciding the same afresh in accordance with law and on merits.