IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 3651 of 2022 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI ================================================================

Approved for Reporting Yes No ================================================================

LR OF SARDAR HIMMATBHAI KHOKAR & ORS.

Versus LR OF JESANGBHAI AMTHABHAI & ORS.

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

Appearance:

A R KADRI(7330) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7 DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESENTATIVES for the Respondent(s) No. 1.1,1.2,1.4 DS AFF.NOT FILED (N) for the Respondent(s) No. 1.5 MR SP MAJMUDAR(3456) for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1.3 SERVED BY AFFIX(N) for the Respondent(s) No. 1.5 ================================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 09/02/2026

ORAL JUDGMENT

1. By way of this petition, under Articles 226 and 227 of the Constitution of India, 1950, the petitioners have prayed to quash and set aside the order dated 28.10.2021 passed by learned 5^th Additional Civil Judge, Vadodara in Civil Misc. Application (Delay) No.1 of 2020 and further prayed to restore Regular Civil Suit No.794 of 2002 to its original status.

2. Heard learned advocate Mr. A. R. Kadri for the petitioners and learned advocate Mr. S. P. Majmudar for the respondent No.2. Perused the record.

3. The brief facts of the case are as under:

4. The petitioners herein has filed a Regular Civil Suit No.794 of 2002 for the relief of cancellation of sale deed dated 30.1.1970 registered with the Office of Sub-Registrar Baroda at Sr. No.387 being bogus, concocted and fraudulent. Petitioner – plaintiff, after framing of issues on 26-12-2016, did not remain present to lead evidence. Resultantly, the learned trial Court dismissed the suit by invoking the provisions of Order 9 Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code’) on 15.10.2018. Therefore, the plaintiffs filed a composite application under Section 5 of the Limitation Act, 1963 and Order 9 – Rule 13 of the Code for condonation of delay and for setting aside the dismissal of the suit respectively. The Civil Misc. Application came to be rejected by Learned Trial Court, against which the present petitioner is before this Court.

5. Learned advocate for the petitioner contended that learned advocate, who appeared for the plaintiff before the learned trial Court, did not remain present during the trial and also did not inform plaintiffs regarding the progress of the suit. Resultantly, for want of knowledge, plaintiff could not remain present. The suit came to be dismissed for default. It is submitted that for the fault of the Learned Counsel for the Plaintiff, the plaintiff should not be penalised. The plaintiff has a good case on facts and there are every chance of success in the trial. In the interest of justice, the chance may be given to the petitioner to put his case by way of evidence. Learned Advocate, for the petitioner, has placed reliance upon the averments made in the memo of the petition and contended that the petitioners approached their Learned Advocate through various modes only when the defendants started the procedure for selling the land in question. In support of his submissions, he has placed reliance upon a decision of the Coordinate Bench of this Court in the case of Aiyubbhai Ajitkhan Sipai v. Kanjibhai Dhanjibhai Ilariya reported in 2025 (o) AIJEL – HC – 251786. Paragraph No.15.1 was pressed into service. The same is reproduced hereunder for the sake of convenience.

“15.1. Likewise, in a case of Collector, Land Acquisition, Anantnag V/s. MST Katiji reported in 1987 2 SCC 107 wherein it has been held thus :-

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold