IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 6883 of 2019 ==========================================================

VASANTBEN PARSHOTTAMBHAI SANGANI & ANR.

Versus AISHA MOHMMAD WD/O MOHMMAD NATTHAN & ORS.

==========================================================

Appearance:

PRERAK P OZA(8279) for the Petitioner(s) No. 1,2 DELETED for the Respondent(s) No. 7 NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5,6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 12/02/2026

ORAL ORDER

1. By way of this petition, the petitioners have prayed to quash and set aside the order dated 25.7.2018 passed under Exh.1 in Special Civil Suit No.96 of 2011 and to restore the delay and restore Special Civil Suit No.96 of 2011 before the learned Principal Senior Civil Judge, Ankleshwar, Bharuch and further prayed to extend the time limit for payment of cost imposed for condonation of delay in restoration of suit.

2. Heard learned advocate Mr. Prerak P. Oza for the petitioners and perused the record. Though served, none appeared for the respondents.

3. At the outset, learned advocate for the petitioners submitted that the petitioners herein have filed a Special Civil Suit No.96 of 2011 for specific performance of a contract against the respondent. The said suit came to be dismissed for default under Order 9 – Rule 8 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’) as neither plaintiff nor learned advocate for the plaintiff appeared in the suit proceedings. Upon noticing the fact that the suit has been dismissed for default by the learned trial Court on 18.1.2017, the petitioners herein filed an application under Order 9 - Rule 9 of the Code for a combined prayers of setting aside dismissal of the suit as well as for condonation of the delay of 130 days in preferring the application. It is submitted that while allowing the application, the learned trial Court directed the plaintiffs – petitioners to pay Rs.50,000/- (Rupees fifty thousand only) with the District Legal Services Authority, Bharuch within a period of 7 days from the date of order, failing which, the application for condonation of delay be considered as dismissed. It is further submitted that a prayer for restoration of the suit has not been decided by the Court below only for the reason that the petitioner was directed to first deposit the cost amount. It is contended that the learned advocate for the petitioner who appeared before the learned trial Court, due to his oversight could not inform the petitioners regarding granting of the prayer for condonation of delay on payment of cost of Rs.50,000/- and, therefore, the petitioners could not deposit the cost amount within a period of stipulated time. It is submitted that the petitioners are even today ready and willing to comply with the directions given by the learned trial Court. It is submitted that the petitioners’ suit is not decided on merits and only because the learned advocate for the plaintiff did not inform the petitioners regarding framing of issues and thereafter to start with the evidence. The petitioners are not at fault. It is contended that if the suit is not restored to its original file, important right of seeking specific performance would be lost and the petitioners would be remediless. In the background of above facts, it is further submitted that though learned trial Court has only granted prayer for condonation of delay, this Court may after extending the period of deposit of cost, be further pleased to restore the Special Civil Suit No.96 of 2011. The extension of time to deposit the cost amount be also considered subject to imposing reasonable cost on the petitioners. No other submissions are made except the above.

4. I have considered the submissions canvassed by learned advocate for the petitioner. Perused the record.

5. It is noticed by this court that after framing of issues on 4-

8-201