ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr. Karan Vyas waives service of notice of rule for and on behalf of respondent No.1 and learned advocate Mr. D.A. Sankhesara waives service of notice of rule for and on behalf of respondent Nos.2 and 3.

2. By way of present petition, petitioner, who is the original plaintiff before the trial court in Special Civil Suit No.32 of 2014, has challenged the order dated 26.12.2018 passed by learned Principal Senior Civil Judge, Sabarkantha at Prantij in Civil Misc. Application No.20 of 2017 dismissing the application for condonation of delay of 15 months.

3. Heard learned advocate for the petitioner, learned advocate for the respondent No.1 and learned advocate for the respondent Nos.2 and 3.

4. Learned advocate for the petitioner submits that Special Civil Suit No.32 of 2014 was filed by the present petitioner against the respondents seeking decree for cancellation of registered sale deed and permanent injunction in respect of the suit properties. That, in the suit, an application Exh.6 for interim injunction was also filed, which was rejected by the trial court on 17.01.2015, and thereafter, petitioner preferred Misc. Civil Appeal No.35 of 2015 on 26.10.2015 before the District and Sessions Court, Sabarkantha at Himmatnagar. It is further submitted that as the suit was pending for framing the issues, learned advocate appearing for the petitioner in the suit had informed that as Misc. Civil Appeal No.35 of 2015 was preferred before the District and Sessions Court, Sabarkantha at Himmatnagar against the order passed below Exh.6, there was no need for the petitioner to attend the court in the proceedings Special Civil Suit No.32 of 2014. Thereafter, no information was received by the petitioner from his advocate and the trial court dismissed the suit for default in absence of the plaintiff on 03.11.2015. It is further submitted that when the petitioner came to know about dismissal of the suit, he immediately applied for certified copies of the relevant documents on 05.01.2017, which were received on 27.01.2017 and filed an application for restoration under Order 9 Rule 9 of C.P.C. That there was a delay in filing restoration application, separate application i.e. Civil Misc. Application No.23 of 2017 was filed by the petitioner on 17.02.2017. It is further submitted that order of the trial court rejecting the application for condonation of delay is hyper technical order saying that no sufficient ground or explanation was made by the petitioner. It is further submitted that advocate engaged by the petitioner never informed the petitioner to attend the suit proceedings filed by the petitioner before the trial court as the appeal was preferred before the District Court against the order passed below Exh.6. That the petitioner was illiterate and his legal rights cannot be waved for the default of his advocate. That petitioner himself was under the impression, as per the instructions of his advocate that when the appeal is pending, civil suit will not be heard, and therefore, as per the instructions issued to him not to remain present, he could not remain present before the trial court, which is not considered by the trial court by dismissing an application. That sufficient explanation was given by the petitioner for condonation of delay, however, trial court has committed a grave error by dismissing the application for condoning the delay. Hence, it was requested by learned advocate for the petitioner to quash and set aside the impugned order dated 26.12.2018 passed by learned trial court in Civil Misc.

Application No.20 of 2017 by allowing this petition and condone the delay as prayed for.

5. From the other side, learned advocate appearing for the respondent Nos.2 and 3 has strongly objected the submissions made by learned advocate for the petitioner and argued that there was no sufficient ground available with the petitioner to accept the prayer of condoning the delay of 15 mo