Point of Law – Restoration application with delay was also rightly rejected by the Court-below after having been pending for 5 years. That no sufficient cause was explained by the petitioners for condoning the delay in preferring restoration application as well as application for delay condonation.

ORDER :

SCA-12470 OF 2019

1. Rule returnable forthwith. Learned advocate Mr. Rajendra D. Jadhav waives service of notice of rule for and on behalf of respondent No.2.

2. By way of present petition, petitioners have requested for following reliefs :

“a. Your Lordships may be pleased top admit this appeal;

b. Your Lordships may be pleased to quashed and set aside the order dated 20.04.2019 passed by the learned Principle Senior Civil Judge, Viramgam in Civil Misc. Application No.14 of 2014 in Restoration Application in Special Civil Suit No.554 of 2008.

c. Be pleased to grant any such other relief/s as may deem fit proper, in the interest of justice.”

3. Short facts of the present case may be summarized as under:

3.1 Petitioners are the original plaintiffs of Special Civil Suit No.554 of 2008, which is filed for the cancelation of sale deed and specific performance of the agreement. As per the averments, respondent No.1 had executed one registered agreement to sell for the land of Survey no. 281/1, 303/1, 285/1/2/3/4 situated at Rudatal village, for Rs. 1,05,070/- dated 7.7.1995 without possession. As per condition, respondent no.1 has to clear the title and execute the sale deed in favour of petitioner on or before 15.11.1995. Respondent no. 1 failed to clear the title of the land, and therefore, on 07.03.1996 possession of land was given against the full amount and additional supplementary agreement was executed containing the fact that sale deed would execute on the demand of the petitioners. Even though respondent no. l had executed sale deed in favour of Opponent no. 2 in the year-2004 without informing the plaintiff. In April 2007, plaintiff had called the respondent no.1 to execute the sale deed as per agreement, at that time, plaintiff got the said information and filed the suit for cancellation of sale deed being Special Civil Suit No.554 of 2008. In the Special Civil Suit No.554 of 2008, learned Civil Judge has framed the issues on 18.05.2013 in the suit filed by the petitioners and thereafter matter fixed for recording evidence on 22.06.2013 and on that day, the applicant No.3 was absent and matter was adjourned on application and thereafter, matter kept on 8.7.2013, on that day the Hon’ble Court was not available and matter was adjourned to 29.7.2013 and thereafter on 29.7.2013, advocate of the respondent named Qureshi was appeared, but respondent’s advocate had given application and matter was adjourned to 19.8.2013 and thereafter, on next date i.e. on 7.9.2013 also, the respondent had given application for adjournment, and therefore, right of the respondents were closed on 4.10.2013 and thereafter matter was listed on 4.10.2013 for recording evidence and advocate of the petitioners had given an adjournment application on 4.10.2013, 22.11.2013, 9.12.2013 and thereafter on 24.12.2013, the Hon’ble Court was not available and matter was adjourned on 31.1.2014, 10.3.2014 and 28.3.2014, both the side had given application of adjournment and matter was adjourned on 7.4.2014. Thereafter on 7.4.2014 the respondent’s advocate was not present and Court closed the right of respondent to cross-examination and adjourned the matter on 25.4.2014 for evidence of plaintiff and thereafter, matter was adjourned on 13.5.2014 but petitioners had not provided the original documents to his advocate and during that period, son-in-law (Jamai) of the petitioner No.3, Rajeshkumar aged about 35 years old was expired and matter was adjourned to 4.7.2014. As petitioners were not present, right of evidence was closed and matter was adjourned on 11.7.2014. On 11.07.2014, the advocate of the petitioners was not informed the date of hearing, and therefore, petitioners were not having knowledge regarding the date of hearing, and therefore, on 11.07.2014, matter was dismissed for default on 23.07.2017. The said information was not available with the advocate of the petitioners and learned Court had passed an order of dismissal of the suit for default.

3.2 The