JAYANTIBHAI GOVINDBHAI KAKADIYA Vs. HITESHBHAI MANSUKHBHAI SAKHIYA

JUDGEMENT

(1.) Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(2.) The case of the petitioner is that the respondent herein filed Special Civil Suit No.214 of 2014 for seeking specific performance of the agreement to sell executed by the petitioner in favour of the respondent for an agricultural land bearing Revenue Survey No.22 Paiki-2 admeasuring 2-10-44 Hectare-Are-Sq. Mtrs., situated at village Madhvipur, Taluka Jasdan, District Rajkot. The petitioner pursuant to the summons having been issued engaged an advocate Mr. Nileshbhai B. Kakadiya, who filed his Vakalatnama, but unfortunately, he died in the year 2014 itself. After elapse of him, his colleague advocate did not take care of the matter and had not informed the defendant, i.e. the present petitioner, about the proceedings of the suit as well as the death of his lawyer, which resulted into proceeding of the suit ex-parte, in which learned advocate at the relevant point of time had not filed even reply. Since the reply was not filed, learned Judge treated the case as uncontested and ultimately, an ex-parte judgment and decree came to be passed on 20.4.2017, wherein direction was given to execute sale deed of the suit land on receipt of remaining sale consideration of Rs.3 lac as Rs.7 lac allegedly have been paid and further directed to handover the possession by permanently injuncting the defendant from selling, mortgaging or transferring the suit land in any manner.

(3.) It is further the case of the petitioner that the petitioner was not aware of such ex-parte decree being passed and thereafter, when the notice came to be received by the petitioner from the Executing Court, the petitioner - defendant realized about the ex- parte judgment and decree. Execution petition was filed in the form of Special Civil Execution Petition No.4 of 2017. The petitioner wanted to prefer an appeal, as a result, with immediate effect, applied for certified copy on 13.3.2018. But, then, as per learned advocate, there arose delay in preferring an appeal. Resultantly, an application for seeking condonation of delay of 338 days came to be filed. Detailed circumstances have been narrated to explain the delay; viz. that learned advocate though filed Vakalatnama at Exh.8 had not appeared nor filed reply and after his death in the year 2014, even his colleague had not taken any step either to inform the defendant or to attend the proceeding. Additionally, it has also been submitted that the petitioner is an illiterate person, he is merely an agriculturist, residing hundred kilometer away from Rajkot and was not aware about the death of the advocate and as soon as the petitioner came to know about the fact of ex-parte decree, immediate steps have been taken to approach the Court concerned for getting the certified copy of the judgment and decree on 13.3.2018, which came to be received on 17.3.2018. However, learned advocate took some time to prefer the appeal. It has also been submitted that this land in question is the only avenue for generating income for maintaining the family and if the delay is not condoned, not only the appeal will become infructuous but serious prejudice will be caused to the petitioner and therefore, by referring to such contentions and submissions, an application for delay came to be preferred. However, unfortunately, learned Additional District Judge, Rajkot vide order dated 28.9.2018 was pleased to reject the request of condonation of delay, as a result of this, this order which has been passed in Misc. Civil Application No.63 of 2018 dated 28.9.2018 is made the subject matter of challenge before this Court by way of the present Special Civil Application.