[1] At the request of learned advocates for the parties, the present appeal is taken up for hearing.
[2] The present First Appeal has been filed by the appellant challenging the impugned order passed by the learned Principal Senior Civil Judge, Gondal below application Ex.1 in Misc. Civil Application No.98/2007 dated 31.01.2009 which is an application for restoration of the Special Civil Suit No.125/1996 which has been dismissed for default.
[3] The facts for chequered history are that the aforesaid Special Civil Suit No.125/1996 filed before the Senior Civil Judge, Gondal for partition of ancestral properties by the original plaintiff was dismissed for default vide order dated 16.11.2007 after the application at Ex.152 was rejected. It is against this order, the aforesaid Misc. Civil Application No.98/2007 was preferred for restoration which was contested and ultimately, by order dated 31.01.2009, the Principal Senior Civil Judge, Gondal rejected the said application.
[4] Against the said order, an appeal came to be preferred before the Additional District Judge, Gondal being Civil Appeal No.12/2009 which was also dismissed vide order dated 11.05.2009 on the ground of jurisdiction and again mistake was made that Appeal from Order No.321/2009 was preferred before this Court. However, as per the order passed in Appeal from Order No.321/2009 dated 07.02.2011, it was withdrawn with a view to file first appeal and that is how the present appeal has been preferred. In other words, in nutshell the proceedings are only for restoration of the suit for being decided on merits and after providing an opportunity to produce the evidence on record to both the sides.
[5] Heard learned advocate Ms.N. N. Shaikh for the appellant and learned advocate Mr.Kamal Sojitra for the respondents No.1 to 4.
[6] In view of the details which have been stated hereinabove and also in fact, the application for restoration came to be filed in Special Civil Suit No.125/1996 and the various contentions raised, it is in the interest of justice, the present appeal deserves to be allowed instead of admitting and remanded Special Civil Suit No.125/1996 to be heard and decided on merits on the basis of the evidence that may be led by the parties.
[7] Therefore, the interest of justice would be served if the present appeal is allowed and accordingly, it is allowed. The impugned order passed in Misc. Civil Application No.98/2007 dated 31.01.2009 by learned Principal Senior Civil Judge, Gondal below application Ex.1 refusing to restore Special Civil Suit No.125/1996 is quashed and set aside and Special Civil Suit No.125/1996 is ordered to be restored on file with direction to the trial Court to decide the same in accordance with law after providing an opportunity to lead the evidence to both the sides. The trial Court shall make endavour to expedite the suit and both the sides shall undertake to cooperate. This order is also passed subject to the cost of Rs.5,000/- to be deposited by the appellant before the Registry of this Court which will be transmitted to the Legal Aid. The writ or this order should be issued after the amount of Rs.5,000/- shall be deposited.
[8] In view of the order passed in First Appeal, Civil Application No.1537/2012 does not survive and accordingly stands disposed of. Direct service is permitted.
[ RAJESH H. SHUKLA, J. ] vijay