In partition suits, every party has the status of a plaintiff, and courts should ensure substantial justice without being hindered by technicalities in proceedings.

JUDGMENT :

J. C. DOSHI, J.

1. Regular Civil Suit No.53 of 2012 was filed before the learned Principal Senior Civil Judge, Jamnagar between brothers with relief of partition and possession of joint Hindu family. On variance of jurisdiction both territorial and pecuniary, the said suit was transferred to Taluka Court, Lalpur and re-numbered as Regular Civil Suit No.23 of 2015. Learned Principal Senior Civil Judge, Lalpur after registering the suit, issued notice to the learned advocate for the plaintiff, but learned advocate did not remain present. Consequential effect was that the suit came to be dismissed for default. Therefore, present petitioner has moved before this Court seeking relief of restoration.

2. In utter fairness, learned advocate Mr.Rachh for the petitioner would submit that present petition is not maintainable as the petitioner was required to avail remedy available under CPC for restoration of suit but requests that since time has passed and if the petitioner is relegated before learned Trial Court for filing restoration application, the plaintiff would run into hook and relief of the partition claimed by the plaintiff would be deferred for long time and fresh channel of litigation would be started.

3. Learned advocate Mr.Vandan Baxi for respondent no.1 supported the case of the petitioner.

4. What exposes from the impugned order that learned Trial Court while dismissing the suit for partition failed to notice that in suit for partition, each party are plaintiff and even if plaintiff is not proceeding with the suit, the Court was required to proceed with the suit. Restoration could be made under Order 9 Rule 9 of CPC but the suit is dismissed having no legal or rational reason in the year 2016 and present petition is filed in the year 2018. Time passed is almost of 8 years. It is the duty of the Court to do justice and technicalities should not prevent party from getting substantial justice. This Court under Article 227 of the Constitution of India even otherwise holds supervisory jurisdiction. Therefore, considering all these aspects, I allow this petition. The impugned order dated 28.03.2016 passed below Exh.1 in Regular Civil Suit No.23 of 2015 is quashed and set aside and the suit is restored to its original proceedings from the day it was dismissed.

5. Since the above order is passed in peculiar facts and circumstances, it should not be treated as precedent. The parties are permitted to move learned Trial Court for expeditious hearing the suit.

6. In view of above, the petition stands disposed of.