1. This petition under Article 227 of the Constitution is at the instance of original defendants and is directed against order dated 3rdSeptember, 2007 passed by Second Additional Senior Civil Judge, Surat in delay condonation application no. 24/2005 and thereby the Trial Court condoned the delay of 5 years and 189 days in filing application for setting aside the dismissal of Special Civil Suit no. 423 of 1987 for non prosecution.

2. The case as set up by the petitioners - original defendants may be summarized thus:

2.1 One Ambelal Umedbhai Patel, father of the respondents herein preferred Special Civil Suit no. 423/1987 for specific performance of the agreement to sell executed in the year 1974 by the petitioners herein. As per condition no. 4 of the Agreement to sell, the registered sale deed was to be executed within period of three years from the date of agreement to sell.

2.2 Ambelal Umedlal Patel preferred Special Civil Suit no. 423/1987 in the Civil Court at Surat on 3rd September, 1987 and prayed for specific performance of the aforesaid agreement to sell.

2.3 In the suit, the Trial Court vide its order dated 3rd September, 1987 granted ex parte injunction in favour of the plaintiff retraining the defendants from transferring or dealing with the suit property. Upon assurance of the plaintiff that he would co-operate and conduct the proceeding of the suit so that it is expeditiously tried and disposed off, defendant no. 4 made an endorsement on the injunction Application (Ex. 5) on 6/9/1994, that the said application be heard along with main suit, thereby the order of injunction continued to operate against the defendants.

2.4 The issues in the suit were framed by the Trial Court on 30th September, 1995 at Ex. 65.

2.5 The first date of hearing after framing of issues was fixed on 29th November, 1995.

2.6 The plaintiff on the said day was required under law to remain present in the Court and give deposition in the form of examination-in-chief. However, the plaintiff failed to remain present on the said day as the plaintiff migrated to U.S.A. with his family. The plaintiff before migrating to U.S.A. made no arrangements by giving Power of Attorney empowering any person to give deposition on his behalf and attend Court proceedings.

2.7 The matter was adjourned time to time to enable the plaintiff to lead his evidence. On none of the dates, fixed by the Trial Court, the plaintiff remained present. The advocate for the plaintiff on each of the date fixed by the Trial Court kept on giving applications for adjournment on the pretext that the talks for settlement were going on between the parties.

2.8 After the issues were framed on 30th September, 1995, the suit came to be adjourned for thirty times and on none of the occasion, the plaintiff remained present.

2.9 The suit was notified for hearing on 20th September, 1999 on the said date, the plaintiff was not present in the Court for giving his deposition. As issues were framed long back on 30th September, 1995 and as no steps whatsoever were taken by the plaintiff to conduct the proceeding with the suit, the Trial Court was constrained to dismiss the suit for non prosecution. Even the advocate of the original plaintiff did not remain present when the suit was called out for hearing on 20/9/1999.

3.0 The sole plaintiff i.e. Ambelal Umedbhai Patel passed away on 9th June, 2004. The respondents herein are the legal heirs of the sole plaintiff.

3.1 On 21/4/2005, the respondents preferred application no. 24/2005 before the Trial Court for condonation of delay of 5 years and 189 days in preferring application for setting aside the dismissal of the suit for non prosecution.

3.2 The petitioners herein filed their reply at exh 11 to the application for condonation of delay and vehemently opposed the prayer for condonation of delay on various grounds. The advocate for the petitioners, who is also one of the defendants also submitted his detailed written statement (ex. 24) before the Trial C