JAYENDRASINH DHARAMSINH ZALA Vs. SAINATH ESTATE PRIVATE LTD

JUDGEMENT

(1.) The present petition is filed challenging the impugned order passed on 29/1/2021 by the Principal Civil Judge, Waghodia in application no.23 of 2019 (old no.26 of 2017) below Exh.1 by which the application for condonation of delay in filing restoration application is rejected.

(2.) The facts which are narrated in the petition are such that the petitioner preferred RCS No.324 of 2015 against the respondent for seeking relief of specific performance, cancellation of sale deeds and permanent injunction in respect of the land in question before the lower Court on 3/11/2015. Thereafter, the cross suit was also filed by respondent no.3/1 to 3/3 being RCS No.327 of 2015 against the petitioner before the same civil Court. The lower Court, on account of non-appearance of respective parties in the suits, dismissed both the suits for non-prosecution by order dtd. 18/7/2017. The petitioner, subsequently, on 9/10/2017 preferred application for condonation of delay in restoration application being Kirkol Application no.23 of 2019 (old no.26 of 2017) seeking condonation of delay of 45 days in preferring restoration application by giving necessary details about the cause of delay. The respondent no.3/1 to 3/3 also preferred an application seeking condonation of delay in restoration application i.e. CMA No.42 of 2017 for restoration of RCS No.327 of 2015. However, the lower Court, by order dtd. 15/11/2019, dismissed the said application no.23 of 2019 on the ground of non- supply of addresses of respondent nos.1 and 2.

(3.) The petitioner immediately undertook to supply addresses of respondent nos.1 and 2. Hence, the said Kirkol Application no.23 of 2019 was again restored on its file on 16/11/2019. The petitioner subsequently on 28/11/2019 and 21/11/2019 provided new address of respondent nos.1 and 2 to the learned court below at Exh.10 and also undertook to pay the special bailiff fee to serve the fresh notice vide application Exh.11. The lower court has allowed the application at Exh.11 by order dtd. 21/11/2019. The special bailiff had gone for service of notice and has submitted report on 27/11/2019 to the lower Court that the respondent no.2 has passed away and hence fresh notice issued to the respondent no.2 was not served to the respondent no.2 by him.