DEVRAJ MESA Vs. RANCHHODBHAI BECHARBHAI

JUDGEMENT

(1.) Present Civil Revision Application preferred under Sec. 115 of the Code of Civil Procedure by the applicant challenging the order passed by the learned Additional District Judge, Porbandar, in Misc. Civil Appeal No.46 of 2002 below Exhibit 18, dated 1.5.2014, whereby the learned Additional District Judge dismissed the said appeal and confirmed the order passed by the learned Joint Civil Judge (J.D.), Porbandar in Civil Misc. Application No.9 of 1993 dated 31.3.1998.

(2.) The brief facts of the present applicant are as under: The applicant is owner of the residential house situated at City Survey Ward No.3 bearing Survey No.2904 having municipal No.11-2-112, situated at Avadhpuri Society, Nr. Kamla Nehru Park, Porbandar i.e. the suit property. The said suit property came to be purchased by the applicant by executing the registered sale deed on 5.10.1981 and construction permission was granted by the Porbandar Municipality. It is also the case of the applicant that on the western side of the suit property, there is existence of 15-00 ft. road and on southern side, there is existing road having 20-00 ft. through which the applicant is having access to suit property owned by the applicant. On the southern side of the suit property, there is open land of 20-00 ft. which is being used by the applicant for access to suit property on the same land, the respondents started construction on eastern and northern part of the suit property in such manner which will result into stoppage of passage for the applicant to his residential suit premises. Therefore, the applicant filed Regular Civil Suit No.311 of 1990 for declaration and injunction came to be instituted by the applicant before the Court of learned Civil Judge (J.D.), Porbandar. In the said suit, learned trial Judge while issuing notice, passed order of status-quo with regard to the suit property. The respondents filed written statement in the said suit. The application below Exhibit 6 for interim injunction came to be rejected by the trial Court on 22.3.1991 and against the same, Civil Misc. Appeal No.9 of 1991 came to be filed by the applicant before District Court, Porbandar. Thereafter, the learned Assistant Judge, Porbandar, by order dated 23.8.1991 was pleased to allow Civil Misc. Application and set aside the order dated 22.3.1991 passed below Exhibit 6 in Regular Civil Suit No.311 of 1990, whereby restrained the respondents from making any construction on the said disputed way on 20 ft. which is towards southern side from the house of the applicant pending final disposal of the suit. Against the said order, the respondents filed Civil Misc. Appeal No.9 of 1991 before lower Appellate Court and same came to be dismissed vide order 22.8.1991. The respondent against the said order, preferred Civil Revision Application before this Court, which also came to be rejected. Thereafter, the trial Court on 26.8.1991, allowed the application below Exhibit 6 filed by the applicant. Thereafter, on 26.3.1992, the witness list is not produced and for the purpose of evidence, the case is adjourned for the purpose of compliance of clause No.187 of the Civil Manual and not for recording of the evidence and therefore, provisions of Order 17 is not attracted. It is the case of the applicant that on 9.4.1992, for the first time, the applicant was not present and the trial Judge passed an order and dismissed the suit for the want of prosecution. On 13.1.1993, an application being Civil Misc. Application No.7 of 1993 under Order 9, Rule 9 read with Sec. 151 of the CPC, came to be filed by the applicant for restoration of the Regular Civil Suit No.311 of 1990. The learned trial Judge dismissed the application by order dated 31.3.1998 on the ground that after receipt of the record from the Appeal Court on 26.8.1991, the case was adjourned on 3.10.1991 for submission of D.E. List at that point of time, the applicant and his advocate were not present. As per the case of the applicant, the applicant was not aware about the receipt of the record by the trial Court from the Appeal Court on 26.8.1991. As per the applicant, it was not in the knowledge of the applicant about the submission of D.E. List, the presence of the applicant is required. Against the order dated 31.3.1998, the applicant preferred Civil Misc. Appeal No.46 of 2002 before the District Court, Porbandar and said Appeal was rejected vide order dated 1.5.2014 by the learned Additional District Judge, Porbandar. Hence, present Revision Application is filed by the applicant.

(3.) Learned advocate Mr. Rajesh K. Savjani appearing for the applicant states that the applicant suffered and received strode in Middle Cerebral Artery Ischemic Stroke described as the sudden onset of focal neurologic deficit resulting from brain infarction on Ischemia in the territory supplied by Middle Cerebral Artery and is under the medical treatment since 7.4.2007 and said treatment is continued at present and therefore, the ground for rejection as held by the learned trial Judge that the applicant has failed in establishing sufficient cause for non appearance when the suit was called out for hearing, is not reasonable. He also states that the case applied by the trial Judge on wrong footing because in that case, the matter was adjourned for 30 times to lead the evidence from the plaintiff side. Herein present case, the applicant remained present on every date and on 20.9.1999, the applicant was not present for giving his deposition and for the first time, the applicant was remained absent and on the said date, the trial Court dismissed the case due to want of prosecution.