Quashed

Jaswantbhai Kodarbhai Rathod v. Jakshibhai Matambhai Bharwad Thro Poa Merubhai Mandanbhai

Gujarat HC19 Jun 2018SCA/8126/2012

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed an impugned order by the Lower Civil Court that had condoned a two-year delay in filing a restoration application. The Court held the applicant failed to demonstrate sufficient cause and the Trial Judge wrongly shifted the onus to the opposing party.

What did the court decide?

The order dated 17th April 2012 condoning the delay in filing the restoration application is quashed and set aside. Rule made absolute.

Jaswantbhai Kodarbhai Rathod Vs Jakshibhai… — Civil Procedure and Limitation | Gujarat HC (2018)

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C/SCA/8126/2012 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 8126 of 2012

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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================================================================ JASWANTBHAI KODARBHAI RATHOD

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Versus

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JAKSHIBHAI MATAMBHAI BHARWAD THRO POA MERUBHAI MANDANBHAI

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Appearance:

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MR GAURANG K PATEL(2613) for the PETITIONER(s) No. 1,2 MR.DIPAK B PATEL(3744) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 19/06/2018

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ORAL JUDGMENT

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This petition under Article 227 of the Constitution of India is filed, to challenge the order dated 17^th April 2012, passed by 2^nd Add. Sr. Civil Judge, Ahmedabad(Rural) at

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Page 1 of 4

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C/SCA/8126/2012 JUDGMENT

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Mirzapur, below Exh. 23 in Civil Miscellaneous Application No. 33 of 2009.

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Facts in brief are as under.

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2.1 The respondent herein was the original plaintiffs who had filed Regular Civil Suit No. 96 of 2005, before the Trial Court. By an order dated 11^th June 2007, Ld. Add. Sr. Civil Judge Ahmedabad(Rural), dismissed the suit on the ground of non-production of evidence.

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2.2 On 13^th April 2009, the respondent – original plaintiff preferred Civil Miscellaneous Application no.33 of 2009, praying that the delay has occurred in filing an application for restoration of the suit. On receipt of the summons issued by the Ld. Judge, the petitioners, on 22^nd November 2010, filed a reply opposing the application. By the order under challenge, Ld. Trial Judge, condoned the delay of 2 years in filing such restoration application and imposed cost of Rs. 1,000/- . Aggrieved by the order the petitioner who was the original defendant is before this court.

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Mr. Gaurang K Patel , Ld. Advocate appeared on behalf of petitioner. He submitted that, the Ld. Judge ought not to have condoned the delay. Shri Patel, has taken me through the application below exhibit 23 and contended that, no reasons have been stated by the applicant and therefore, there was no sufficient cause for the court to condone the delay in filing the application of restoration. He further submits that, the application of condonation of delay was filed on the basis of affidavit of the Power of Attorney holder,

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Page 2 of 4

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C/SCA/8126/2012 JUDGMENT

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namely Merubhai, whereas suit was in the name of Jakshibhai. No condonation application without showing sufficient cause by the plaintiff could have been entertained.

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Mr. Dipak B Patel, Ld.Counsel appearing for the respondent – original plaintiff has submitted that, since the applicant, Power of Attorney holder and the original plaintiff were ailing, and that the courts kept changing, they lost the track of the suit proceedings and therefore, were not aware of the order dated 11^th June 2007, by which the suit was dismissed. He further submitted that the Ld.Judge was right in condoning delay and awarding costs, as no prejudice was caused to the petitioner / defendant.

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Heard the Ld. Advocates for the respective parties. I have gone through the memo of the application below exhibit 23, Civil Miscellaneous Application 33/2009, filed by the respondent- original plaintiff. Reading of the application suggests that, except showing that the plaintiffs were ailing and that they were not aware of the proceedings nothing has been produced on record so as to suggest or satisfy the court that there was “sufficient cause for condoning the delay of 2 years in filing such application”.

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Even on going through the order dated, 17^th April 2012, under challenge what is apparent is that, the Ld. Trial Judge in holding that delay was required to be condoned, has essentially shifted onus on the petitioner. What the Ld. Trial Judge has observed is that, it was because of the failure of the petitioner- respondent in the application to contest the delay condonation application and oppose the same and prove that

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Page 3 of 4

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C/SCA/8126/2012 JUDGMENT

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there was no sufficient cause, delay was required to be condoned.

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What the Ld. Judge has failed to appreciate is that, it was for the applicant before him to make out a case with supporting documents and averements in the application to satisfy the court that there was sufficient cause to condone the delay. They having failed to do so, the onus could not have been shifted on the respondents opposing the application.

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Having considered the application and the order under challenge, I am of the opinion that, respondent - original plaintiff had failed to make out a case to satisfy the court in order to condone the delay of 2 years in filing an application for restoration. Ld. Trial Judge therefore, was clearly in error in allowing such application and condone the delay.

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Accordingly, the order dated 17^th April 2012, passed below exhibit 23, in Civil Miscellaneous Application No. 33/2009, by Ld. 2^nd Add. Sr. Civil Judge Ahmedabad (Rural) Mirzapur, is quashed and set aside. Petition is allowed. Rule is made absolute accordingly. No order as to cost.

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(BIREN VAISHNAV, J)

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Radhika Srinivasan

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Page 4 of 4

Jaswantbhai Kodarbhai Rathod v. Jakshibhai Matambhai Bharwad Thro Poa Merubhai Mandanbhai

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Jaswantbhai Kodarbhai Rathod v. Jakshibhai Matambhai Bharwad Thro Poa Merubhai Mandanbhai

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