DINESHBHAI CHIMANBHAI BARIA Vs. DILIPBHAI BHUPATSINH BARIA

JUDGEMENT

(1.) Mr. Nishit A.Bhalodi, learned advocate for the petitioner states that the challenge is given to the dismissal of the restoration application passed on 28/12/2023 in Misc. Civil Application No.133 of 2021 for a prayer of restoring the original MACP No.1482 of 2017 at Limkheda.

(2.) Mr. Bhalodi submitted that delay condonation application for filing the restoration application was allowed; however, the Tribunal, dismissed the MACP (New) No.1482 of 2017 [MACP (Old) No.138 of 2012], rejected the restoration application, which was given under Order 9 Rule 6 of the Civil Procedure Code, observing that the earlier dismissal was on merits and therefore the authority becomes functus officio.

(3.) Relying upon the judgment of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai, reported in 2011 (2) G.L.R. 1324 Advocate Mr. Bhalodi submitted that restoration application should have been granted, where the earlier dismissal of the claim petition is not on merits. Mr. Bhalodi stated that the learned Tribunal ought not to have dismissed the claim petition for non-prosecution, where the matter remain pending before the Tribunal from the year 2012 without any framing of issues, and as per the instructions, Mr. Bhalodi submitted that the issues were framed on 16/1/2019 below Exhibit-8.