SUSHILABEN ARVINDBHAI JOSHI Vs. ATAJI BHALAJI THAKORE

JUDGEMENT

(1.) Challenge in this petition under Article 227 of the Constitution of India is to the order dtd. 5/12/2019 passed in Delay Condonation Application being Civil Misc. Application No.262 of 2019, whereby and whereunder the learned Principal Senior Civil Judge, Ahmedabad (Rural) rejected the prayer to condone the delay caused in preferring restoration application, filed to restore the suit being Special Civil Suit No.55 of 2003, which came to be dismissed for want of prosecution.

(2.) Facts and circumstances giving rise to file present petition are that, the father of the petitioner Chunilal Khushalchandra Joshi in his lifetime, filed a suit for decree of specific performance of the agreement to sell, cancellation of sale deed and permanent injunction in relation to the agricultural land bearing Survey No.320. According to case, the agreement to sell dtd. 22/4/1989 came to be executed by the original land owner and agreed to sell the said land with a consideration of Rs.61,000.00. Pursuant to the said agreement, the vendor also executed supplementary-cum-possession agreement dtd. 22/4/1989 and after receiving the full amount of consideration, he handed over the vacant possession of the land to Chunilal Joshi along with the original title. Despite of these facts, the land owner, vide registered sale deed dtd. 11/2/2003, sold the said land to respondents no.2 and 3. In the aforesaid background facts, the purchaser Chunilal Joshi filed the aforementioned suit for specific performance of the agreement to sell and cancellation of subsequent documents.

(3.) Mr. Anshin Desai, learned senior counsel assisted by Mr. N.V. Gandhi, learned counsel for the petitioners has submitted that, after the transfer of the suit to one Court to another, the deceased plaintiff could not track the suit and the same was dismissed for want of prosecution. The deceased plaintiff was in impression that, suit is still pending before the Court. The respondents-defendants, after dismissal of the suit, applied before Revenue Authority to mutate the order of the Court and accordingly, when notice came to be issued by the Revenue Authority to the deceased and at that stage, he came to know about the result of the suit and meanwhile he passed away and immediately, on the basis of Xerox copy of the order as the Court was not in a position to issue certified copy on account of missing of suit records, the legal heirs-present petitioners, filed an application for restoration of the suit along with delay condonation application. Thus, in the aforesaid facts, the trial Court overlooked the said ground reality of the delay, caused in preferring the appropriate proceedings.