CHIKABHAI MULABHAI HARIJAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed under Article 226 and 227 of the Constitution of India challenging the order passed by Principal Senior Civil Judge, Sanand dtd. 4/10/2018 rendered in Civil Misc. Application No. 22 of 2017, whereby an application praying for condonation of delay in preferring restoration application of the suit came to be rejected.

(2.) The petitioners are original plaintiffs, who filed a Regular Civil Suit bearing No. 156 of 1993 praying for declaration to the effect that the suit land be declared to be of the ownership of the plaintiffs and for permanent injunction. The said suit came to be filed after the inquiry conducted by the revenue authorities and ultimately determined by Special Secretary, Revenue Department, holding the land to be of the ownership of the then Nagar Panchayat. For establishing ownership right over the suit land aforesaid suit came to be filed. Though no copy of order, whereby suit came to be dismissed for default, is produced by the petitioners as averred in the application, it came to be dismissed for default vide order dtd. 5/12/2008. However, by Civil Misc. Application No. 81 of 2016, a prayer for condonation of delay of 7 years and 8 months prayed for vide application dtd. 7/7/2016 and on transfer to the Sanand Court, it was re-numbered as Civil Misc. Application No. 22 of 2017, which came to be rejected by the impugned order dtd. 4/10/2018 against which present petition is filed.

(3.) Mr. Tejas P. Satta, learned advocate for the petitioners vehemently submitted that petitioners were never informed by their advocate about the dates in the suit and ultimately, they were not knowing that the suit is already dismissed for non-prosecution. He has further submitted that as such, one of the petitioners named in para 9 of the application was attending the Court on all adjourned dates but since the case was not proceeding further, he had some quarrel with his advocate frequently, and therefore, the advocate informed him that unless he is called by him, he should not attend the Court. Based on such assurance of an advocate, the petitioners were waiting for a call from the advocate to attend the Court and during that time, suit has come to be dismissed. This is the only explanation offered in the application praying for condonation of delay. So far as knowledge about the said order is concerned, it is averred in the application that vide letter dtd. 2/4/2016, City Survey Superintendent, Sanand, requested petitioners to produce any order passed in their Regular Civil Suit No. 156 of 1993, they contacted their advocate and they came to know about the said dismissal. It is further averred in the application that when certified copy of the said order was requested for by them through the advocate, record was not traceable as informed by the learned advocate, and therefore, on 23/4/2016, other advocate was requested to get the copy of the order as also the record, which consumed more time and as claimed in the application that the said copy was not furnished till 22/7/2016, the present restoration application is filed. However, the xerox of the certified copy of an order produced for perusal, whereby suit came to be dismissed for default, it appears that the said certified copy has been applied, prepared and provided on 13/4/2016.