The court should decide matters on their merits rather than technicalities, and the provision of granting only three adjournments should be understood in a reasonable manner.

JUDGMENT :

1. This appeal under section 104 r/w. O.43 R.1(r) of the Civil Procedure Code, 1908 (CPC) is filed assailing the order dated 30.10.2018, passed by the learned 6th Additional Senior Civil Judge, Surat below exh. 1 in Civil Misc. Application No. 143 of 2018, whereby, the learned trial Judge dismissed the said application for restoration of Special Civil Suit No. 64 of 2014, which was dismissed for default by an order dated 30.07.2018.

2. Facts in nutshell of the case on hand are that the present appellant – original plaintiff filed a suit being Special Civil Suit No. 64 of 2014 for declaration and permanent injunction and cancellation of sale deed through power of attorney – Baria Dhirajsinh Laxmansinh. However, since the said power of attorney began to act against the interest of the appellant – plaintiff, the appellant – plaintiff eventually cancelled the said power of attorney on 08.07.2015 and appointed new power of attorney namely Sudhaben Gopalbhai Darji in the suit. However, the earlier power of attorney holder was insisting the appellant – plaintiff to retain him as a power of attorney. He even did not handover the papers to the appellant and hence, the appellant – plaintiff had to arrange for documents from various offices. It is the case of the appellant – plaintiff that on 26.07.2018, the matter was on board at the stage of framing Issues. On the said date, adjournment application was given, which came to be rejected and the suit was posted on 30.07.2018. On that day, adjournment application given by the appellant – plaintiff came to be rejected. Also, the learned trial Judge dismissed the suit for default under O.9 R.3 of the CPC. The appellant – plaintiff also moved a Civil Misc. Application No. 143 of 2018 for restoration of the suit, however, the same also came to be dismissed vide order dated 30.10.2018 by the learned trial Judge and hence, this appeal.

3. Heard, learned advocate Mr. J. H. Singh for the appellant – original plaintiff and learned advocate Mr. A. M. Parekh for the respondent – original defendant.

3.1 The learned advocate for the appellant submitted that, as can be seen from the copy of status report of the suit produced on record, Issues in the suit were framed on 26.07.2018 and thereafter, the suit was posted for evidence on 30.07.2018, which was the first date for leading evidence. However, the learned trial Judge, without considering the adjournment application of the appellant, dismissed the suit of the appellant for default. It is submitted that the suit was frequently transferred from one Court to another and as per the status report, from 04.12.2017 to 26.07.2018, the same was at the stage of Issues only and immediately, on 30.07.2018, the suit is being dismissed for default by the learned trial Judge, without being given an opportunity to represent his case to the appellant – plaintiff, taking a very hyper-technical approach in the matter. The learned advocate for the appellant also submitted that another identical suit being Special Civil Suit No. 374 of 2014 is also pending before the learned Court below and the said fact was also apprised to the learned trial Judge, however, the same was not taken into consideration. It is submitted that due to genuine reasons of non-availability of documents etc., as aforesaid, the appellant – plaintiff could not produce evidence, otherwise, the appellant would gain nothing by not producing evidence in time. It is submitted that such a hyper-technical approach of the learned trial Judge would cause irreparable loss to the appellant. Making such submissions, it is urged that impugned orders may be set aside and the suit may be restore to its original file.

3.2 In support of his case, the learned advocate for the appellant has relied upon a decision of the Hon'ble Apex Court in Kusumben Indersinh Dhupia v. Sudhaben Biharilalji Bhaiya and Another, (2019) 3 SCC 569.

4. Per contra, learned advocate Mr. Parekh for the respondent – defendant, while suppor