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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  No(s). 230   OF 2019 (Arising out of SLP (C) No.12794 of 2014)

KUSUMBEN INDERSINH DHUPIA                         Appellant(s)

                               VERSUS

SUDHABEN BIHARILALJI BHAIYA & ANR.                 Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of judgment and order dated 28th

January, 2014 passed by the High Court of Gujarat at Ahmedabad

in Special Civil Application NO.16821 of 2011 in and by which

the  High  Court  affirmed  the  order  of  the  Trial  Court  and

thereby declining to restore the suit.

(3) The appellant-plaintiff filed Civil Suit NO.217 of 1994

against respondents No.1 and 2 for declaration and injunction

in respect of plot no.16-E, admeasuring 250 sq. yds. on Revenue

Survey No.62-65, Village Althan, Surat.  The issues were framed

on 3rd October, 2008 and the suit was dismissed for default on

6th November, 2008.

(4) The appellant-plaintiff immediately filed an application

under Order IX, Rule 9 of the C.P.C. for restoration of the

said suit on 4th December, 2008 which came to be dismissed on

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21st July,  2011  on  the  ground  that  the  plaintiff  and  his

advocate are continuously  remaining absent and the plaintiff

is  not  interested  in  pursuing  the  matter.   The  revision

petition, Special Civil Application No.16821 of 2011, preferred

by the appellant-plaintiff before the High Court also came to

be  dismissed.   Being  aggrieved,  the  appellant-plaintiff  is

before us.

(5) The first respondent is represented by Mrs. Saroj Haresh

Raichura,  Advocate.   Second  respondent-Bhagwandas  Nandlal

Bagdi, remained unserved in spite of issuance of notice.  By

Order dated 4th December, 2018, substituted service was ordered.

In compliance thereof, the appellant-plaintiff effected service

through  paper  publication  in  ‘Gujarati  Daily’  and  has  also

filed  affidavit  to  that  effect.   Service  on  the  second

respondent is held to be sufficient.

(6) We  have  heard  Mr.  Shamik  Sanjanwala,  learned  counsel

appearing  for  the  appellant-plaintiff  and  Mrs.  Saroj  Haresh

Raichura,  learned  counsel  appearing  for  respondent  No.1  and

also  perused  the  impugned  judgment  and  other  materials  on

record.

(7) Mr. Shamik Sanjanwala, learned counsel appearing for the

appellant-plaintiff, has drawn our attention to the  RojKam-

order sheet of the 11th Additional Senior Civil Judge, Surat,

and submitted that after filing the application for restoration

of the suit, the appellant-plaintiff remained present in almost

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all the hearings but the matter could not be taken up as the

business  of  the  court  did  not  permit.   Mr.  Shamik  further

submitted that only on the date of hearing i.e. 21st July, 2011,

the appellant-plaintiff could not be present and on that date

the Trial Court has dismissed the application filed under Order

IX, Rule 9 of the C.P.C., by observing that the appellant-

plaintiff was remaining absent continuously.

(8) Mr.  Shamik  has  taken  us  through  the  various  dates  of

hearing before the Trial Court in support of his contention. In

the  Rojkam-order sheet, of the Trial Court it is seen that

although the application (under Order IX, Rule 9 of the C.P.C.)

for  restoration  of  the  suit  was  filed  as  early  as  on  4th

December, 2008, which was well within the period of limitation

and  the  appellant-plaintiff  was  present  in  most  of  the

hearings, the application could not be taken up as the business

of the Trial Court did not permit to proceed with the matter.

By perusal of Rojkam-order sheet, it also appears that though

the appellant-plaintiff was present number of times and the

respondents-defendants  were  not  present.   The  appellant-

plaintiff  remained  present  before  the  Trial  Court  on

02.02.2009,  20.04.2009,  25.06.2009,  24.08.2009,  29.09.2009,

11.11.2009,  09.12.2009,  11.01.2010,  16.02.2010,  16.03.2010,

17.04.2010,  26.07.2010,  07.08.2010,  18.11.2010,  05.01.2011,

05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011

as per the Rojkam-order sheet.

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(9) Having  regard  to  the  Rojkam-order  sheet of  the  Trial

Court, we are of the view that both the Trial Court as well as

the High Court were not right in observing that the appellant-

plaintiff  was  not  interested  in  pursuing  the  restoration

application.   As  pointed  out  earlier,  application  for

restoration of the suit filed by the appellant-plaintiff was

well within the period of limitation.  The appellant-plaintiff

was present in almost all hearings before the Trial Court which

indicates  that  he  was  genuinely  pursing  the  matter.   The

appellant-plaintiff having filed the suit for declaration and

injunction  in  our  considered  view  ought  to  be  given  an

opportunity to pursue his suit.

(10) In the result, the impugned order of the High Court is set

aside and this appeal is allowed.  Civil Suit No.217 of 1994,

shall stand restored on the file of Additional Senior Civil

Judge,  Surat.   The  Trial  Court  shall  accord  sufficient

opportunity to both the parties and proceed with the matter in

accordance with law.  The Trial Court shall expedite the trial

of the suit and both the parties shall co-operate for the early

disposal of the suit. No costs.        

..........................J.                 (R. BANUMATHI)

..........................J.         (INDIRA BANERJEE)

NEW DELHI, JANUARY 9, 2019.