SUNITABEN Vs. MAYADEVI CHUDMAL HARIRAMANI

JUDGEMENT

(1.) This petition is filed by the petitioner - original plaintiff challenging the order passed by the 2nd Additional District Judge, Mahesana, dtd. 8/9/2021, whereby Misc. Civil Appeal No.6 of 2020, praying for quashing the order refusing to condone delay caused in preferring restoration application, rejected as no appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") is maintainable, challenging the order refusing to condone the delay.

(2.) It appears that petitioner as original plaintiff had preferred Special Civil Suit No.122 of 1994, which came to be dismissed for non-prosecution vide order dtd. 21/9/1998. However, as coming out from the record, it appears that vide order dtd. 29/6/2007 in Civil Misc. Application No.36 of 2006, it came to be restored to the file and assigned to the Court where it was determined. However, that original defendant appears to have challenged the order restoring the suit by way of Civil Misc. Application No.121 of 2007 in the Court of District Judge, Mahesana, who allowed the same holding that Civil Judge (Junior Division) has no jurisdiction to restore the case as it was instituted in the Court of Senior Civil Judge. That very order came to be challenged by the present petitioner - plaintiff by filing Special Civil Application No.5759 of 2008, whereby this Court set aside the order passed by the Appellate Court and confirmed the order passed by the learned Additional Civil Judge, Mahesana in Civil Misc. Application No.36 of 2006, whereby suit came to be restored. The said order of High Court came to be passed on 3/7/2013. However, from the papers annexed with the petition, it appears that on 4/3/2008, 06 th Additional Senior Civil Judge, Mahesana, dismissed the suit as in view of Appellate Court's order passed in Civil Misc. Application No.121 of 2007, whereby order restoring the suit came to be quashed by the Appellate Court. However, pursuant to order passed by the High Court dtd. 3/7/2013, plaintiff gave an application dtd. 10/2/2014, since the High Court has set aside the Appellate order, pursuant to which suit stood dismissed on 4/3/2008, this Court restored the suit itself, setting aside the Appellate Court's order and therefore, vide order dtd. 18/9/2014, Principal Senior Civil Judge, Mahesana passed order to that effect directing entering the entry of that suit in the computer and for further proceeding in the same.

(3.) Though the suit is restored pursuant to the production of order of the High Court, on an application by the petitioner - plaintiff, vide order date 18/9/2014, it appears that since neither the plaintiff nor her advocate remained present before the Court, though repeatedly called out on 17/6/2016, learned 05 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Mahesana, again dismissed the said suit for default, observing that after exhausting remedies available when the suit got restored thereafter, the plaintiff has shown no interest in the progress of the suit.