SANKALCHAND JAYCHAND PATEL Vs. AMRUTBEN MANGAJI

JUDGEMENT

(1.) Invoking powers of this Court under Article 227 of the Constitution of India, the petitioners - original plaintiffs have challenged an order dtd. 3/5/2010 passed in Civil Misc. Application No.23 of 2009 by the learned 02 nd Additional Senior Civil Judge, Gandhinagar, which came to be confirmed by the District Court, Gandhinagar vide order dtd. 25/3/2011 passed in Misc. Civil Appeal (Appeal from Order) No.42 of 2010, whereby the prayer for restoration of a suit, which was dismissed for default, came to be rejected.

(2.) The petitioners are the original plaintiffs and the respondents are the original defendants. The petitioners filed a suit vide Regular Civil Suit No.343 of 1996, seeking declaration that the sale deed executed on 4/4/1981 in favour of plaintiffs, which was registered on 15/4/1981, is the only legal and valid document and if at all, any of the defendants or any of them along with one another have executed any sale deed or any other document allegedly seeking to re-transfer the suit property in favour of anyone, they all are sham, got up, illegal, not binding and to be acted according to law. At the same time, a cancellation of sale deed dtd. 13/11/1995 was also sought for, as signature of the plaintiffs to be held to be forged, sham, got up and perpetuated by committing forgery against the plaintiffs and declared it to be illegal and unenforceable at law.

(3.) As coming out from the record, a suit was posted for recording evidence of plaintiffs on 13/6/2007 and it came to be dismissed for the absence of the plaintiffs as also their advocate on the ground that said suit is too old kept for recording evidence. The petitioners - plaintiffs preferred Civil Misc. Application No.23 of 2009 before the Trial Court, purportedly under Order IX, Rule 8 & 10 and requested restoring the suit, which is already dismissed for absence of the plaintiffs. In the said application, it is claimed that they came to know about the dismissal of the suit only on 25/2/2009 and therefore, certified copy thereof was obtained on the very same day and they have filed an application for restoration within 30 days from the date of their knowledge about the same and therefore, it is not barred by any limitation therein. Over and above that, they have explained the reasons for their absence as also the absence of the advocate in the said application. The said application came to be filed on 3/3/2009. The respondents - defendants filed reply to the same at Exhibit - 18. However, as recorded in the order, respondent No.1 therein i.e.