Admit. Mr. Mukesh Talsania, Ld. Advocate for Mr. Akash Patel, Ld. Advocate for the respondent waives service of admission.
2. Considering the facts and circumstances of the case and as requested by the learned advocates representing both the sides, this matter is taken up for final hearing today.
3. The instant appeal is filed under Order 43 Rule 1[t] of the Civil Procedure Code praying to quash and set aside the order dated 29/3/2011 passed in Civil Misc. Application No. 67 of 2010 by the Ld. 3rd Addl. District Judge, Surendranagar.
4. The brief facts leading to this appeal are that the appellant herein was original defendant in Regular Civil Suit No. 1/2004 and in the said suit, at the end of the trial, eviction decree came to be passed against the appellant. He challenged the said eviction decree before the District Court, Surendranagar, by preferring Regular Civil Appeal No. 28/2008. When the said appeal was pending, on 26/8/2010 Ld. Advocate appearing for the appellant original defendant in the said appeal, filed an application for adjournment. It transpires that the Ld. Advocate representing the respondent did not raise any objection, but made the endorsement that there was no objection if the time was granted. However, vide order dated 26/8/2010 the Ld. 2nd Addl. District Judge, Surendranagar, dismissed the said application together with the main appeal. The said order came to be challenged by the appellant herein by preferring Civil Misc. Application No. 67/2010 in the District Court, Surendranagar. Vide impugned order dated 29/3/2011 the Ld. 3rd Addl. District Judge, Surendranagar, dismissed the said application and hence this appeal.
5. I have taken into consideration the submissions made by Mr. MS Shah, Ld. Advocate for the appellant and Mr. Mukesh Talsania, Ld. Advocate for the respondent and I have taken into consideration the relevant papers annexed with this appeal. The entire controversy centres round to the order dated 26/8/2010 passed by the Ld. 2nd Addl. District Judge, Surendranagar, below time application exh. 20 in Regular Civil Appeal No. 28/2008. Considering the copy of said application together with the order of the appellate Court, it transpires that the main appeal was listed on 25/8/2010 and on that date, the appeal could not be proceeded further and, therefore, was listed on the next day i.e. 26/8/2010. Therefore, in the time application exh. 20, one of the grounds raised by the Ld. Advocate representing the appellant therein was that because of the short duration he could not prepare written arguments as well as could not prepare for oral arguments and, therefore, short time was asked for. In that application exh. 20 itself, it has been further stated that on any date that may be fixed by the appellate Court, he shall proceed further with the matter and he shall not ask for any time. It further transpires that below time application exh. 20, the Ld. Advocate representing the respondent in the said appeal, made a written endorsement to the effect that there was no objection if time being granted. It appears that the Ld. 2nd Addl. District Judge, Surendranagar, vide order dated 26/8/2010 observed that sufficient opportunity was given to the appellant to proceed with the appeal and that the reasons stated in the time application were not sufficient to grant said application and hence said time application along with the main appeal came to be dismissed.
6. When the said order was challenged by the appellant in the District Court, Surendranagar, by preferring Civil Misc. Application No. 67/2010, the Ld. 3rd Addl. District Judge, Surendranagar vide order dated 29/3/2011, after hearing both the sides, observed that since the appeal was very old and the time application exh. 20 was, therefore, rightly rejected at the relevant time. It was further observed that the grounds which were taken up in the said application were not sufficient to interfere with the impugned order dated 26/8/2010 passed in Regular Civil Appeal No. 28/2008.
7. Having considered the submissions advanced on behalf of both sides, so also considering the facts and circumstances of the case and more particularly time application exh. 20 filed in Regular Civil Appeal No. 28/2008 and in light of the above discussion, this Court is of the opinion that the instant appeal deserves to be allowed and the impugned order dated 29/3/2011 passed by the Ld. 3rd Addl. District Judge, Surendranagar, deserves to be quashed and set aside with appropriate directions.
8. For the foregoing reasons, the present Appeal is allowed and the impugned order dated 29/3/2011 passed by the Ld. 3rd Addl. District Judge, Surendranagar, in Civil Misc. Application No. 67/2010 is quashed and set aside. Resultantly, Regular Civil Appeal No. 28/2008 is ordered to be restored to the file of District Court, Surendranagar, and as agreed by the Ld. Advocates representing both the sides, the concerned appellate Court shall list the said appeal for hearing on 19/04/2012 and as agreed by both the sides, both the sides shall cooperate to the concerned appellate Court for early disposal of said appeal and the concerned appellate Court shall dispose of the said appeal in accordance with law at the earliest, preferably within 6 [six] months hereof. There shall be no order as to costs.
Registry to send the writ of the order to the concerned appellate Court forthwith.
(J.C.UPADHYAYA, J.) * Pansala.
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