ORDER :

1. The present petition is filed under Article 227 of the Constitution of India with the following prayers:

“6(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order at Annexure-A dated 02.11.2020 passed by Ld. 6th Additional Senior Civil Judge, Rajkot in Civil Misc. Application No. 1356 of 2007 and order dated 23.08.2007 passed by 7th Additional Senior Civil Judge in Special Civil Suit No. 158 of 1988 and be pleased to restore the Special Civil Suit No. 158 of 1988 to its original place in the interest of justice and oblige.

(B) xxx xxx xxx”

2. Heard learned advocate Mr. Asthawadi for the petitioner, learned advocate Mr. Dhaval Shah for respondent no. 4 and learned advocate Mr. Vimal Patel for respondent no. 6. Respondent nos. 1 and 7 have been deleted as they have expired during the pendency of the petition.

3. Learned advocate Mr. Asthawadi has drawn my attention towards the impugned order passed by the learned trial Court rejecting the application filed for restoration of the suit and submitted that no prejudice will be caused if the application is granted as sufficient cause is made out for restoration of the said suit. He submitted that the learned trial Court has taken hyper technical approach by considering various aspects of the matter but without properly giving the reasons for rejecting the application under Order 9 Rule 9 of the CPC which is essentially filed for restoration of the suit. He further submitted that the reasons given in the impugned order are not applicable and not required to be given as the application was for restoration of the main suit only.

3.1 Learned advocate has further submitted that some of the parties have expired during the pendency of the proceeding and proper action is taken qua those parties at the relevant point of time and also now in the present petition. It is submitted that though it is stated that petitioner no. 2-Ilaben Kantilal Modi has expired in the year 1992, but she has applied for impleadment as party in the year 2008 and the said fact is clarified in the year 2008 and therefore the same may not be considered while considering the present petition. He, therefore, resorting to provisions of Order 9 Rule 9 of CPC and Section 151 of CPC, submits that this court may interfere with the impugned order by allowing this petition by exercising powers under Section 227 of the Constitution of India.

3.2 Learned advocate further submitted that while issuing notice, this Court has ordered for deposit of Rs. 25,000/- towards the cost of litigation, which is deposited and is lying with the Registry of this Court.

4. Per contra, learned advocate Mr. Patel for the respondents had strongly objected the submissions made at the bar and the prayers prayed for in this petition. He has drawn the attention towards the affidavit-in-reply filed by respondent no. 6-Pravinbhai Patel wherein the entire chronology of events is narrated and looking to such chronology, the conduct of the present petitioners is required to be considered. He has further submitted that the application is filed before this Court after much delay of more than three years and four months. The learned trial Court has passed the impugned order on 2.11.2010 and the present petition is filed in the month of March, 2014 which itself shows the conduct of the petitioner. Any proceeding which is required to be filed before the learned trial court for restoration is required to be filed within thirty days in view of the Article 122 of the Limitation Act. In the present case, it is filed beyond that period, that too, without filing any application for separate condonation of delay. Therefore, he prays that the impugned order which is passed by the learned trial Court is just and proper, with proper reasons and the Court has also dealt with the other aspects of the matter while deciding the application which is required in the pecul