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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.C.DOSHI
Malde Veja Karavadra(Mer) @ Malde Veja Jivan Hothi – Appellant
Versus
Ramabhai Veja Karavadra(Mer) @ Ramesh Veja Hothi – Respondent
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
In partition suits, every party has the status of a plaintiff, and courts should ensure substantial justice without being hindered by technicalities in proceedings.
The court emphasized that technicalities should not be allowed to annul the adjudication made by the trial court and the appellate authorities, and that substantial justice should be done to the liti....
An appeal under Order XLIII Rule 1(t) is not maintainable for a restoration application dismissed due to limitation as it does not involve a decision on the merits.
The right to seek partition is a recurring cause of action, and a fresh suit is not barred by the dismissal of a previous suit for non-prosecution under CPC.
Restoration of partition suits dismissed for default emphasizes that procedural delays should not obstruct substantial justice and meritorious claims.
In matters of suit restoration, courts should prioritize justice and merits over default while ensuring adequate compensation for the opposing party's hardships.
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