NEW SHIDDHIVINAYAK CORPORATION Vs. LALITABEN CHHAGANBHAI

JUDGEMENT

(1.) The present petition is filed by the petitioners - original defendants No.1 and 2 under Article 227 of the Constitution of India, challenging the impugned order dtd. 19/11/2022 passed below Civil Misc. Application No.162 of 2019 (for restoration) in Special Civil Suit No.406 of 2006 by the 4 th Additional Senior Civil Judge, Surat, whereby the trial Court has allowed the application for restoration filed by original plaintiffs - respondents No.1 and 2 herein.

(2.) Learned advocate Ms.Varsha Brahmbhatt for learned advocate Ms.Pooja H. Bhardwaj for the petitioners has submitted that several litigation are filed between the parties. She has pointed from the application for restoration filed by present respondents No.1 and 2, more particularly the averments made in paragraphs 1 and 3 thereof and has submitted that respondents no.1 and 2 were aware about the fact that now every Courts are updating the status of each case online, even then the application for restoration is filed by making incorrect averments. She has further pointed out from the copy of the rojkam that the trial Court has issued notice to the parties for framing of issues and for leading of evidence. Though served to the plaintiffs - respondents No.1 and 2, the Court has granted two adjournments and on 19/8/2019, the matter is kept for dismissal order and accordingly, on 21/8/2019, the matter is dismissed for default. She has further pointed out about the judgment of this Court reported in 2012 (3) GLR 2565, which is cited at the bar before the trial Court, wherein the Co-ordinate Bench of this Court has taken a view that if any reasonable ground is not stated in the application, the same should not be granted. She has further submitted that considering the provisions of Order IX Rule 4 and Order IX Rule 9 of the Code of Civil Procedure, 1908 and considering the averments made in the application, the impugned order passed by the trial Court is erroneous and without properly appreciating the facts on record and therefore, she prays to interference in the impugned order by exercising the supervisory powers under Article 227 of the Constitution of India. She has submitted that this petition may be allowed.

(3.) Per contra, learned advocate Mr.Virat Popat for respondents No.1 and 2 - original plaintiffs No.1 and 2, appearing on caveat, has submitted that the trial Court has not committed any error, more particularly the plaintiffs have filed the restoration application within a prescribed period of limitation i.e. within 30 days. He has drawn the attention of this Court towards operative part of the impugned order where the trial Court has imposed cost on the plaintiffs and directed the plaintiffs to deposit Rs.5,000.00 before the District Legal Services Authority, Surat and Rs.3,000.00 to defendants No.1 and 2. He has submitted that the trial Court has further directed the plaintiffs to complete the pleadings by adducing the evidence within a period of two months. He has submitted that considering the totality of the facts and circumstances and in the interest of justice, the trial Court has passed the impugned order accordingly. He has further submitted that pursuant to that order, the amount of Rs.5,000.00 has already been deposited by the plaintiffs before the District Legal Services Authority, Surat. He has submitted that therefore, there is no reason to interfere with such discretionary powers vested by the trial Court in favour of the plaintiffs, more particularly, when there is no reason for the plaintiffs to delay the suit proceedings and even then the trial Court has taken into consideration about the expedite hearing of the suit proceedings. He has submitted that no powers be exercised under Article 227 of the Constitution of India in favour of the petitioners. He has submitted that this petition may be dismissed.