VIPUL LAXMICHAND POLADIA Vs. REENA RISHABH SHAH NEE

JUDGEMENT

(1.) Heard learned Counsel for the appellant. The appellant take exception to the order dated 16/8/2017 passed by the Judge, City Civil Court in Notice of Motion that was filed by the respondent - original defendant for review of the order passed dismissing the suit on 20/9/2014.

(2.) Learned Counsel for the appellant contends that he is the original defendant. The plaintiff's suit was fixed for evidence. The plaintiff through out was represented by an Advocate Shri Paras Vira. It appears that on 20/8/2006, the said Paras Vira gave his no objection and since then there is another advocate Shri Swapnil Kothari on record representing the plaintiff. However, as pointed out by learned Counsel for the appellant, Shri Paras Vira continued to represent the plaintiff. In the roznama, the appearance of Shri Paras Vira is shown as an advocate appearing on behalf of the plaintiff. When the matter was fixed for evidence, on as many as eight occasions between 2013 to 2014, advocate Shri Paras Vira sought adjournment on one ground or other. The Court had no alternative but to fix the matter for dismissal. As even on the date fixed for dismissal of the suit the advocate for the plaintiff did not proceed to lead the evidence and he remained absent, the trial Court was constrained to dismiss the suit on 20/9/2014.

(3.) Thereafter, the plaintiff took out the Notice of Motion for restoration of the suit. By an order dated 27/1/2015, the Notice of Motion filed for restoration of the suit came to be dismissed. The main reason for dismissal of the Notice of Motion was that the advocate Shri Paras Vira was appearing in dual capacity as an advocate and also as a Constituted Attorney on behalf of the plaintiff. This was impermissible. The trial Court was of the opinion that no sufficient cause was shown for restoration of the suit hence for the reasons recorded the Notice of Motion came to be dismissed.