IMPORTANT POINT
The court upheld the trial court's discretion in rejecting the application to restore a suit dismissed for default, finding no sufficient cause for the appellants' absence during proceedings.

JUDGMENT :

1. With the consent of the parties, the present Appeal from Order has been taken up for final disposal.

2. By filing present Appeal from Order 43, Rule 1(d) of the Code of Civil Procedure, the appellants have challenged the judgment and order dated 25.06.2024 passed by the learned Additional City Civil Judge (Court No.15), City Civil & Sessions Court, Ahmedabad in Civil Misc. Application No.95/2020, whereby the application preferred by the appellants under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” for short) came to be rejected.

3. The brief facts leading to filing of the present Appeal from Order are as under,

3.1 The respondent herein had filed Civil Suit No.645/1994 before the learned City Civil Court, Ahmedabad inter alia praying for partition of the property being Sub Plot Nos.3, 10 & 11 admeasuring 937.55 Sq.Mtrs., 2573 Sq.Mtrs. and 802.32 Sq.Mrs. respectively situated in Town Planning Scheme No.29, Final Plot No.127 at Vadaj, Ahmedabad as also property situated at Shahpur, which is an ancestral property (hereinafter referred to as “the suit properties” for short). Thus, the suit was filed between the family members.

3.2 On filing of the said suit, notice came to be issued upon the defendants therein, who are the appellants herein and upon service of notice, the appellants have appeared before the learned City Civil Court through their advocate. Pending said suit, the original defendant no.1 passed away and, hence, her heirs were brought on record, who appeared and filed their written statement.

3.3 Thereafter, the respondent no.1 filed examination in chief in the suit and as soon as the said fact came to the notice of the appellant no.4, an application for joining third party to the suit proceeding came to be filed, which was rejected by the learned Judge, against which, writ petition being Special Civil Application No.21886/2019 came to be filed before this Hon’ble Court, wherein notice was issued and it was pending at the relevant point of time.

3.4 Pending above writ petition, the suit proceedings were continued and the respondents submitted an application to close the rights of cross-examination of the appellants, which came to be allowed by the learned Judge and, thereafter, proceeded with the suit proceedings. Not only that, closing purshis was submitted by the respondents and, thereafter, the arguments of the respondent were heard and the learned Judge pronounced the judgment and order on 27.12.2020 in absence of the appellants and also drawn preliminary decree.

3.5 However thereafter, the appellants preferred Civil Misc. Application No.95/2020 under Order 9, Rule 13 of the CPC for restoration of the suit on the ground of that the judgment and order was passed in their absence. However, the learned Judge, by impugned order, rejected the said application, which has been assailed in the present Appeal from Order.

4. Heard learned advocate, Mr. J.F. Mehta for the appellants and learned advocate, Mr. Kunjal Pandya for respondents.

5. Learned advocate submitted that the aforesaid suit has been filed by the respondent no.1 before the learned City Civil Judge, Ahmedabad in the year 1994 inter alia praying for partition of the suit properties and pending suit proceedings, the original defendant no.1 passed away and, hence, her heirs were brought on record. Learned advocate submitted that on filing of the suit, notice was issued and in pursuance thereto, the appellants have appeared before the learned Judge and opposed the suit by filing written statement. Learned advocate submitted that during the pendency of the suit proceedings, the examination of chief of the plaintiff had been submitted and due to nonappearance of the original plaintiff for longer period of time, the suit was dismissed for default for want of prosecution by the learned Judge. Learned advocate submitted that pending suit, original property owner had executed registered “Will” in favour of her grandson, th