PRAHLAD BECHARJI THAKOR Vs. MEPABHAI KAYABHAI BHARWAD

JUDGEMENT

(1.) By way of this petition filed, under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dtd. 17/8/2022 passed in Civil Misc. Application No.20 of 2022, by which the learned Additional Civil Judge, Kadi, Dist.: Mehsana, rejected the prayer to restore Regular Civil Suit No.178 of 2008.

(2.) Heard learned counsel Mr.R.R. Sharma for the petitioner. Though served, none appears for and on behalf of the respondents.

(3.) The petitioner - original plaintiff had filed a suit being RCS No.78 of 2008 against the respondents - defendants. During the suit proceedings, defendant nos.1 and 2 expired on 3/11/2012 and 27/11/2016 respectively. The suit was abated as the petitioner - plaintiff failed to bring on record the legal heirs of the defendants in a limitation. Restoration application being Cr.M.A.No.20 of 2022 to restore the Civil Suit was rejected, mainly on the ground that with the delay condone application, prayer was not sought for setting aside the abatement. It is no doubt true that the restoration application is filed in the limitation. The prayer for setting aside abatement was also sought, but the same was not prayed in the time limit of 60 days, as a result, the Court-below was of the opinion that the application for restoration is not maintainable and accordingly, the application was rejected on technical ground.