PRAHLADBHAI SHIVABHAI PATEL Vs. BHANUBEN KANTIBHAI PATEL

JUDGEMENT

(1.) LEAVE to amend the memorandum of the petition at Page1, so as to include "Article 227", is granted. The necessary amendment be carried out, forthwith.

(2.) BY preferring this petition under Articles226 and 227 of the Constitution of India, the petitioner has challenged the impugned order dated 13.02.2014, passed by the City Civil Court below the application at Exhibit11, whereby the application for condonation of the delay of eleven years, that has occurred in filing the application for restoration of Civil Suit No.3121/1983, has been rejected.

(3.) MS .Mita S. Panchal, learned advocate for the petitioner submits that the order passed by the Court below is unjust, improper and illegal, hence, deserves to be quashed and set aside. 4.1 It is further submitted that though it is true that the papers of the plaint were taken away by the petitioner, however, this was done only with a view to defending another suit filed by the defendant, before the Court of Small Causes. The advocate for the petitioner had not retired from the case, therefore, it was his duty to point out this aspect to the Court when the suit was listed before it. In failing to do so, the advocate failed to discharge his duty and the petitioner ought not to be made to suffer due to the negligence of the advocate. 4.2 It is contended that if the suit is not restored, the petitioner would lose for all times to come, therefore, the City Civil Court ought to have taken a lenient and pragmatic view by condoning the delay, in the interest of justice. 4.3 It is urged that the petitioner had received a letter from his advocate, which was lost, due to oversight. The said letter was not for the purpose of retirement from the case. From the Rojkam of the Court, it appears that no representation was made by the concerned advocate, to the effect that the papers of the plaint were taken away by the petitioner. The petitioner came to know only in the year 2013, that the suit had been dismissed for default. Upon inquiry, he also found that the advocate representing him had expired. All the above circumstances were beyond the control of the petitioner, hence, the delay of eleven years deserves to be condoned. 4.4 In support of the above submissions, reliance has been placed upon a judgment of the Apex Court in Haribhai Lakhubhai Seedhav Vs. State of Gujarat, 2010 2 GLH 97.