ISMAIL MOHMAD PATEL Vs. IQBAL PATEL

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioners - original plaintiffs seek to challenge order dtd. 23/1/2013 passed below Exh. 49 in Civil Misc. Application No. 77 of 2006, whereby, the learned 6 th Additional Senior Civil Judge, Bharuch, dismissed the delay condonation application, filed for restoration application.

(2.) Heard learned counsel Mr. Prince Datta for Mr. S.P. Majmudar, learned counsel appearing for and on behalf of the petitioners. Though called out, learned counsel for the respondent did not remain present.

(3.) The petitioners herein had filed Special Civil Suit No. 110 of 2004, which came to be dismissed for want of prosecution on 21/1/2006. While dismissing the suit, the trial Court observed that, the plaintiffs were present on 4/10/2005 and thereafter, they did not remain present before the Court despite service of notice. Thus, the suit was dismissed for non-prosecution. The suit was filed for specific performance of the contract, for which, the plaintiffs had paid Rs.38,950.00 towards the court fees. During the pendency of the suit, the plaintiffs were agreed to pay balance amount of Rs.7.00 lakhs and accordingly, after hearing the parties, the trial Court directed the plaintiffs to pay the deficit amount within one month. The petitioners failed to comply the said order and subsequently the suit came to be dismissed for want of prosecution. The petitioners herein filed a delay condonation application, as there was delay caused in filing the restoration application. In the delay condonation application, the petitioners have stated that the petitioner no. 1 was suffering from serious ailment for which he has submitted medical certificate of treating doctor, whereas, the petitioner nos. 2 and 3 are women, who having no personal knowledge about the suit proceedings. It is in these context, it was stated that, there was delay of 198 days caused in filing restoration application and it may be condoned, as there was no any deliberate delay or inaction on their part. The learned trial court was not satisfied with the reasons shown by the petitioners and dismissed the application.