Point of law : The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time.

JUDGMENT :

1. This appeal from order under O.43 R.1(1)(c) of the Civil Procedure Code, 1908 (CPC) assails the order dated 12.02.2020 passed by the learned Additional Judge, City Civil and Sessions Court, Court No. 25, Ahmedabad City in Misc. Civil Application No. 637 of 2019 by which, the restoration application filed by the present appellants came to be rejected.

2. Admit.

3. Facts in nutshell of the case on hand are that the appellants are the original plaintiffs, who had filed a civil suit being Regular Civil Suit No. 767 of 2007 for permanent injunction in the City Civil Court, Ahmedabad. The said suit came to be dismissed for default by virtue of an order passed below exhs. 1 and 88 dated 05.09.2019 for want of prosecution. Against the said order, the appellants – plaintiffs filed the aforesaid misc. civil application for restoration of the suit, however, the same came to be rejected vide order impugned herein.

4. Heard, learned advocate Mr. Pratik Khubchandani for M/s. Vyas Associates for the appellants and learned advocate Ms. Lilu K. Bhaya for the respondent.

4.1 The learned advocate for the appellants submitted that the impugned order is illegal, perverse and against the settled principles of law. It is submitted that the impugned order is passed without appreciating the purport of O.9 R.9 CPC inasmuch as the same is to be liberally considered. It is submitted that though sufficient cause was shown, the learned Court below has taken such a hyper-technical view in the matter. It is submitted that since the learned advocate representing the appellants – plaintiffs before the trial Court was not keeping well, he could not remain present before the Court concerned and the learned trial Court ought to have appreciated the said fact. It is further submitted that past conduct regarding default in appearing is not a criterion at all while considering the sufficient cause. It is submitted that the appellants have good case on merits and in the circumstances, it is prayed that the impugned order may be set aside and the suit may be ordered to be restored to its original file.

4.2 In support of his case, the learned advocate for the appellants has relied upon following decisions:

(i) Smt. Garuda Sakuntala v. A.V.M. Jagga Rao (died) and Others, 2000 SCC Online AP 550;

(ii) A. Murugesan v. Jamuna Rani, 2019 SCC Online SC 200;

(iii) Jaswant Singh and Others v. Parkash Kaur and Another, (2018) 12 SCC 249;

(iv) Ganesh Co-operative Housing Society Limited v. Ishwarbhai Keshavbhai Patel, 2002 (1) GLR 159.

5. As against this, the learned advocate for the respondent, with all vehemence at her command, opposed the present appeal and submitted that this is a case of suppression of material facts. She submitted that a person who does not come with clean hands and suppresses the material facts which go to the root of the case, and files such an application, may not be entertained. It is submitted that a person seeking equity must do equity. It is submitted that suppression of material facts amounts to intentionally misleading the Court. It is submitted that the appellants have produced the orders of 2004 to 2009 but have not produced the subsequent orders which are passed by the Court on 19.12.2011 or the order passed by this Court in 2013. It is submitted that intentionally, the said orders are not produced before this Court. It is further submitted that in 10 years old matter, the appellants had sought 17 adjournments. Further, from the facts, it is clear that the appellants have lost in revenue proceedings up to Secretary (Appeals) and at each and every level, this Court as well as the revenue authorities have decided against the present appellants.

5.1 Thus, making above submissions, it is urged that the present appeal may be dismissed with cost.

5.2 In support of her case, the learned advocate for the respondent has relied upon following decisions of the Hon'ble Apex Court:

(i) K. D. Sharma v. Steel Authority of India Ltd. and Others, decided on 09.