Kusumben Indersingh Dhupia vs Sudhaben Biharilalji Bhaiya

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

KUSUMBEN INDERSINH DHUPIA Appellant(s)

VERSUS

SUDHABEN BIHARILALJI BHAIYA & ANR. Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(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.

Signature Not Verified (4) Digitally signed by MAHABIR SINGH Date: 2019.01.11

The appellant-plaintiff immediately filed an application 16:27:14 IST Reason:

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 2

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

record.

(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 3

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 4 th

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.

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(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.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, JANUARY 9, 2019.