Judgment Date  09 Jan 2019                                                                                         Click Here To Read Digest

CIVIL APPEAL No(s). 230 OF 2019 (Arising out of SLP (C) No.12794 of 2014)


(1) Leave granted.

(2) This appeal arises out of judgment and order dated 28th
January, 2014 passed by the High Court of Gujarat at Ahmedabad
in Special Civil Application NO.16821 of 2011 in and by which
the High Court affirmed the order of the Trial Court and
thereby declining to restore the suit.

(3) The appellant-plaintiff filed Civil Suit NO.217 of 1994
against respondents No.1 and 2 for declaration and injunction
in respect of plot no.16-E, admeasuring 250 sq. yds. on Revenue
Survey No.62-65, Village Althan, Surat. The issues were framed
on 3rd October, 2008 and the suit was dismissed for default on
6th November, 2008.

(4) The appellant-plaintiff immediately filed an application
under Order IX, Rule 9 of the C.P.C. for restoration of the
said suit on 4th December, 2008 which came to be dismissed on
21st July, 2011 on the ground that the plaintiff and his
advocate are continuously remaining absent and the plaintiff
is not interested in pursuing the matter. The revision
petition, Special Civil Application No.16821 of 2011, preferred
by the appellant-plaintiff before the High Court also came to
be dismissed. Being aggrieved, the appellant-plaintiff is
before us.

(5) The first respondent is represented by Mrs. Saroj Haresh
Raichura, Advocate. Second respondent-Bhagwandas Nandlal
Bagdi, remained unserved in spite of issuance of notice. By
Order dated 4th December, 2018, substituted service was ordered.
In compliance thereof, the appellant-plaintiff effected service
through paper publication in ‘Gujarati Daily’ and has also
filed affidavit to that effect. Service on the second
respondent is held to be sufficient.

(6) We have heard Mr. Shamik Sanjanwala, learned counsel
appearing for the appellant-plaintiff and Mrs. Saroj Haresh
Raichura, learned counsel appearing for respondent No.1 and
also perused the impugned judgment and other materials on

(7) Mr. Shamik Sanjanwala, learned counsel appearing for the
appellant-plaintiff, has drawn our attention to the RojKam
order sheet of the 11th Additional Senior Civil Judge, Surat,
and submitted that after filing the application for restoration
of the suit, the appellant-plaintiff remained present in almost
all the hearings but the matter could not be taken up as the
business of the court did not permit. Mr. Shamik further
submitted that only on the date of hearing i.e. 21st July, 2011,
the appellant-plaintiff could not be present and on that date
the Trial Court has dismissed the application filed under Order
IX, Rule 9 of the C.P.C., by observing that the appellant
plaintiff was remaining absent continuously.

(8) Mr. Shamik has taken us through the various dates of
hearing before the Trial Court in support of his contention. In
the Rojkam-order sheet, of the Trial Court it is seen that
although the application (under Order IX, Rule 9 of the C.P.C.)
for restoration of the suit was filed as early as on 4th
December, 2008, which was well within the period of limitation
and the appellant-plaintiff was present in most of the
hearings, the application could not be taken up as the business
of the Trial Court did not permit to proceed with the matter.
By perusal of Rojkam-order sheet, it also appears that though
the appellant-plaintiff was present number of times and the
respondents-defendants were not present. The appellant
plaintiff remained present before the Trial Court on
02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009, 29.09.2009,
11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010,
17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011,
05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011
as per the Rojkam-order sheet.

(9) Having regard to the Rojkam-order sheet of the Trial
Court, we are of the view that both the Trial Court as well as
the High Court were not right in observing that the appellant
plaintiff was not interested in pursuing the restoration
application. As pointed out earlier, application for
restoration of the suit filed by the appellant-plaintiff was
well within the period of limitation. The appellant-plaintiff
was present in almost all hearings before the Trial Court which
indicates that he was genuinely pursing the matter. The
appellant-plaintiff having filed the suit for declaration and
injunction in our considered view ought to be given an
opportunity to pursue his suit.

(10) In the result, the impugned order of the High Court is set
aside and this appeal is allowed. Civil Suit No.217 of 1994,
shall stand restored on the file of Additional Senior Civil
Judge, Surat. The Trial Court shall accord sufficient
opportunity to both the parties and proceed with the matter in
accordance with law. The Trial Court shall expedite the trial
of the suit and both the parties shall co-operate for the early
disposal of the suit. No costs.





January 23, 2019

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