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1965 Supreme(Guj) 122

Gujarat High Court
Judgename :B.J.DIVAN
ACHARYA SHRI DEVENDRAPRASADJI VASUDEOPRASADJI MAHARAJ PANDE - Appellant
Versus
SADHU MUKTAJIVANDASJI GURU ISHWARDASJI - Respondent
Civil Revision 175 of 1965
Decided On : 12/03/1965

Advocates Appeared: G.N.DESAI, S.B.VAKIL

Headnote:

Limitation Act – Sections 5, 14 – Delay – Condonation of – Civil Revision Applications came to be disposed of by this High Court and Raju J. allowed both Civil Revision Applications and remanded all the four applications two restoration applications and the two condonation applications to trial Court – By this time the Court of the Joint Civil Judge Jr. Dn. had been abolished and City Civil Court has been set up in its place and the matters went back after remand to one of the Judges in the City Civil Court – By his judgment and order Judge in City Civil Court allowed all the four applications – He held on the delay condonation applications that there was sufficient cause for condoning the delay and he therefore condoned the delay and then held that the restoration applications were not time-barred and on merits he held that the applications for restoration should be granted and he therefore granted those two restoration applications also – It is against the judgments orders pronounced in these four applications that that present four Civil Revision Applications have been filed – Held, Trial judge with respect to him was in error when he condoned the delay between February 3 1953 and August 8 1956 sec. 5 of the Limitation Act and held that the bar of limitation under sec. 3 was saved – With respect to him it was obligatory on him to hold that the restoration applications having been presented and the sufficient cause having been shown only for the delay upto July 10 1956 the applications were barred by limitation and he should have dismissed the restoration applications and should have also dismissed the condonation applications – Law of procedure being clear and unambiguous it cannot be said that Court is taking too technical a view or that Court is allowing the law of procedure to be turned into a thing designed to trip people up and Court is unable to accept the contention that Court have taken too technical a view regarding the provisions of this procedural law – Civil Revision Applications Allowed

B. J. DIVAN, J.

( 1 ) IN each of these four Civil Revision Applications the petitioner is the same individual and the respondent is also the same individual. These four Civil Revision Applications arise out of virtually the same order which was passed in two suits which were consolidated before the trial Court and hence I will dispose of all these four Civil Revision Applications by this common judgment.

( 2 ) IN order to understand and appreciate the points involved in this group of matters it is necessary to set out certain facts. One suit was filed as far back as March 1941 being Civil Suit No. 549 of 1941 in the Court of the Civil Judge Sr. Dn. Ahmedabad. The present opponent who is the plaintiff in that suit filed the suit challenging an order passed by the defendant the present petitioner in each of these four matters. The order that was passed by the defendant was in his capacity as the Acharya of the particular sect to which the plaintiff and the defendant belonged declaring that the defendant was Vimukh. By this suit the plaintiff challenged the order of Vimukh and claimed damages declaration etc. A second suit was thereafter filed on November 22 1943 based on the same cause of action viz. regarding the order of Vimukh passed by the Acharya but claiming damages that according to the plaintiff had arisen during the period between 1941 and 1943 i. e. during the period that had elapsed since the filing of the first suit. These two suits were consolidated by the trial Court. On February 3 1953 these consolidated suits were on board of the joint Civil Judge Jr. Dn. he being one of the Joint Civil Judges Jr. Dn at Ahmedabad for the purpose of recording further evidence of the plaintiff. By this time the evidence of the defendant was over and closed and some evidence for the plaintiff had already been recorded. Some part of the deposition of the plaintiff had also been recorded and on this particular day i. e. February 3 1953 the plaintiff was absent as he had gone to Africa and his evidence had been recorded de bene esse on commission. The advocates for both the parties were present on February 3 1953 and on that day some more witnesses on behalf of the plaintiff were to be examined but no witnesses were brought to the Court. The learned Judge trying the suit waited for some time and thereafter the learned Advocate for the plaintiff applied for time. This application for time was rejected and the Advocate applied orally for leave to withdraw his appearance on behalf of the plaintiff. The learned trial Judge granted this application on the basis that a written pursis would be filed by the Advocate later on in the course of the day. No written pursis applying for leave to withdraw his appearance in each of these two suits were ever filed and the learned trial Judge dismissed both the suits on February 3 1953 and from that time onwards till today the plaintiff has been agitating in one Court or another asking for restoration of the suit and for setting aside the order of dismissal passed on February 3 1953 On the same day i. e. on February 3 1953 two applications were presented under Order 9 Rule 9 C. P. C. for restoration. One application was filed for res- toration in Suit No. 549/1941 and the other in suit No. 1354/1943. These two applications for restoration were filed by the same Advocate who had earlier in the course of the day applied for leave to withdraw his appearance on behalf of the plaintiff and whose application for withdrawal of the appearance had been granted by the learned trial Judge. The applications were not signed by the plaintiff Obviously as the plaintiff was in Africa on that day. These two applications were dismissed by the learned Judge on the ground that the Advocate who had withdrawn his appearance earlier in the course of the day had not secured a fresh Vakalatnama from the plaintiff and therefore had no authority to present the two applications for restoration. Apart from preferring the application

















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