Advocates:
['P P MAJMUDAR', 'RULE NOT RECD BACK', 'PARTHIV B SHAH', 'RULE SERVED']

C/SCA/14394/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 14394 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE K.M.THAKER

Sd/-

and

HONOURABLE MR.JUSTICE V.P. PATEL

Sd/-

1 Whether Reporters of Local Papers may be allowed to

see the judgment ?

No

2 To be referred to the Reporter or not ?

No

3 Whether their Lordships wish to see the fair copy of the

judgment ?

No

4 Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any

order made thereunder ?

No

LAXMIBEN MAGANLAL MAHALA & 2 other(s)

Versus

SHANTABEN DAHYABHAI PATEL & 5 other(s)

Appearance:

MR SHALIN MEHTA SENIOR COUNSEL WITH MR P P MAJMUDAR(5284)

for the Petitioner(s) No. 1,2,3

MR RASHESH SANJANWALA SENIOR COUNSEL WITH MR PARTHIV B

SHAH(2678) for the Respondent(s) No. 2,7

RULE NOT RECD BACK(63) for the Respondent(s) No. 1,4,5

RULE SERVED(64) for the Respondent(s) No. 3,6

CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

and

HONOURABLE MR.JUSTICE V.P. PATEL

Date : 09/08/2019

ORAL JUDGMENT

  (PER : HONOURABLE MR.JUSTICE K.M.THAKER)

1.

Heard Mr. Shalin Mehta, learned Senior Counsel for the

petitioners and Mr. Rashesh Sanjanwala, learned Senior Counsel for the

respondents.

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2.

In present petition the petitioners have challenged order dated

26.9.2014 passed by learned Addition Civil Judge, Vadodara.

3.

By said judgment learned Trial Court rejected an application

seeking condonation of delay caused in filing application No. 87 of 2014

seeking restoration of Special Civil Suit No. 599 of 2005.

4.

The factual backdrop and submissions by learned advocates for

the contesting parties will demonstrate that there is dispute with regard

to period / length of delay caused in filing application seeking

restoration of the suit inasmuch as according to the petitioners, span of

delay is 7 months and 6 days whereas according to the opponents total

period of delay caused in filing said application is more than four years.

5.

Before proceeding further it is also appropriate to mention that

from the narration of factual backdrop and submissions by both the sides

it would emerge that actually the said suit, abated for want of action in

accordance with law, upon and after the death of sole plaintiff.

5.1

However, neither the order declaring that the suit stands abated

nor actual factum (viz. abatement of suit) are disputed or challenged in

present petition.

5.2

Any request to set aside the abatement or any request for

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declaration that abatement stands cancelled and set aside is not prayed

for in present petition.

6.

So as to appreciate rival contention it is necessary to take into

account factual backdrop, which can be summarized thus:-

6.1

Father of present petitioners filed Special Civil Suit No. 599 of

2005.

6.2

Subsequently the petitioners (heirs of original defendant) filed

Special Civil Suit No. 2 of 2010 and Special Civil Suit No. 214 of 2013.

6.3

So far as present petition is concerned the dispute and controversy

raised in present petition is related to and arises from suit No. 599 of

2005.

6.4

The subject matter of the proceedings on hand is a parcel of land

admeasuring 2500 Sq. Mtrs bearing Revenue Survey No. 1154 / paiki-1,

situate at Village Varnama, Baroda.

6.5

Father of present petitioners had entered into an agreement (viz.

agreement to sell (Banakhat) dated 19.12.1980) whereby present

petitioners' father agreed to purchase the suit property.

6.6

According to the petitioners the original defendant had, during

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