The court held that the absence of an advocate due to engagement in another court and a communication gap within the advocate's office constitute sufficient cause for restoring a petition dismissed for non-prosecution and condoning the resulting delay in filing the restoration application.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr. Paresh Dave for learned advocate Ruchit Vyas for the applicant and learned Assistant Government Pleader Ms. Shrunjal Shah for the respondent Nos. 1 to 3.

2. Rule returnable forthwith. Learned AGP waives service of notice of rule on behalf of the respondents.

3. This application is filed for restoration of Special Civil Application No. 13319 of 2023 with following prayers:

“(A) That your Lordships may be pleased to recall order dated 17.04.2025 (Annexure I) and be further pleased to restore Special Civil Application No. 13319 of 2023 to its original number:

(B) That your Lordships may be pleased to condone 270 days delay in filing the present application for revival/restoration of Special Civil Application No. 13319/2023;

(C) Any other further relief as may be deemed fit in the facts and circumstances of the case may also pleased be granted;

(D) That your Lordships may dispense with the affidavit of the petitioner for this Application;”

4. Learned advocate Mr. Paresh Dave referred to and relied upon the following averments made in the application:

“1. The applicant-petitioner has filed the captioned writ petition before this Hon'ble Court for seeking a Writ of Mandamus or any other appropriate writ, direction or order, thereby quashing and setting aside the order dated 31.03.2023 passed by Respondent No.2, and seeking a Writ of Mandamus or any other appropriate writ, direction or order, thereby quashing and setting aside the order dated 28.01.2022. This petition has been dismissed for non-prosecution by this Hon'ble Court on 17.04.2025. A copy of Order dated 17.04.2025 passed by this Hon'ble Court (Coram: Hon'ble Mr. Justice Bhargav D. Karia & Hon'ble Mr. Justice D.N. Ray) is enclosed and marked as Annexure - I to this application. The petitioner tenders unconditional apology to the Hon'ble Court for causing inconvenience to the Hon'ble Court, and also for not arguing the matter due to absence of the Advocate appearing on behalf of the petitioner on 17.04.2025. The petitioner most respectfully prays that a lenient view may be taken and the petition may be revived/restored to its original number for decision on merits and the petitioner may be obliged thereby.

2. The petitioner may bring to the kind notice of this Hon'ble Court that on 17.04.2025, the petitioner's Advocate was on his legs before the Court of Hon'ble Mr. Justice Divyesh A. Joshi in R/SCR.A/16787/2024. Thus, when the present matter was called, the petitioner's Advocate was before another Hon'ble Court for R/SCR.A/16787/2024 which was listed at Sr. 31 on 17.04.2025. Because the advocate was before another Hon'ble Court, the present petition could not be attended by him; for which sincere apology is hereby tendered before this Hon'ble Court. However, the petitioner once again tenders his unconditional apology to this Hon'ble Court and assures that default in appearance would not take place in future. The petitioner also prays for revival/restoration of the petition thereby recalling Order dated 17.04.2025, and oblige. The petitioner submits that if the petition is restored then no serious prejudice would be caused to the opponents herein but grave and serious prejudice would be caused to the petitioner if the petition is not restored, and thus. balance of convenience is also in the petitioner favour in this case.

3. The Petitioner also prays before this Hon'ble Court for condoning delay in filing the present application for restoration of the writ petition. This Hon'ble Court has dismissed the petit