HOMIBHAI JAHANGIRJI VESUNA Vs. MINUBHAI DARBASHA @ DALI PATEL

JUDGEMENT

(1.) The petitioners, who are the defendants in the Special Civil Suit No.316 of 2002, filed by the respondents have filed the present petition under Article 227 of the Constitution of India challenging the order dated 12.09.2014 passed by learned Additional 5th Senior Civil Judge, Surat in Restoration Application No.49 of 2012 preferred by the respondents whereby learned Judge allowed the said application and ordered to restore the suit for further hearing with cost of Rs. 2000/- and also ordered the respondents to deposit Rs. 2,000/- with the District Legal Service Authority.

(2.) For sake of convenience the petitioners shall be referred as defendants and respondents as plaintiff's. In the suit, the plaintiff's have prayed for declaration that the defendants have got no right or authority to interfere with peaceful and vacant possession of the suit lands of the plaintiff's, to enter on or to transfer, alienate or mortgage or to give in gift or in any manner creating any charge or any third party interest in the suit lands and to declare that sale deed executed by defendants No.4 and 5 in favour of the defendants No.1, 2 and 3 on 30.03.2002 is null, void, ineffective and not binding to the plaintiff's. The plaintiff's have further prayed for specific performance of the contract as per the agreement to sale (Satakhat) dated 8th March, 1986 stated to have been executed by the defendant No.1 in favour of the grandfather of the plaintiff's for the suit lands, and in alternative, for damages, if the Court finds it not appropriate to grant specific performance of the contract and have further prayed for permanent injunction restraining the defendants from interfering with the peaceful and vacant possession of the plaintiff's suit lands, from transferring, alienating or creating any charge or third party interest in the suit lands.

(3.) In the suit, issues were framed on 28.01.2010 and it was at the stage of evidence of the plaintiff. However, it was dismissed for default on 04.07.2011 by observing that plaintiff was not coming forward to give evidence and had no interest in the suit. The plaintiff's then filed Restoration Application No.49 of 2012 on 21.10.2011 seeking to set aside the order dated 04.07.2011 and to restore the suit for deciding the same on merits. The defendants filed their reply opposing the Restoration Application of the plaintiff's and preferred an application at Exh.22 on 21.10.2013 stating that on false and fabricated grounds, the plaintiff's have filed Restoration Application and it is for the plaintiff's to prove the averments made in the Restoration Application but they have not given any evidence and only affidavit is tendered which is not admissible in evidence and requested the Court to frame points for determination without prejudice to the other contentions of the petitioners. Such application was rejected by learned 12th Additional Senior Civil Judge, Surat vide order dated 05.12.2013 which was challenged by the defendants by filing Special Civil Application No.477 of 2014 before this Court. The said petition was not pressed with a liberty to the defendants to take all contentions if the Restoration Application was to be decided against them. The Restoration Application was then decided and allowed by the impugned order.