1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinoriginal plaintiff original applicant to quash and set aside the impugned order passed by the learned Civil Judge (S.D.), Application No.43 of 1996 and consequently to restore the Special Civil Suit No.35 of 1996 on the file of learned Civil Judge (S.D.), Gandhinagar.
2.0 The petitioner hereinoriginal applicant preferred Special Civil Suit No.35 of 1996 in the Court of learned Civil Judge (S.D.), Gandhinagar for specific performance of the agreement to sell executed by the original defendants. That the summons of the said suit were served upon the original defendants and they appeared in the suit through their advocate. It appears that and it is the case on behalf of the applicant hereinoriginal plaintiff that the defendants respondents herein agreed to execute the sale deed with respect to the disputed property in question on or before 27.8.1996 and therefore, relying upon the said representation the petitioner hereinoriginal plaintiff submitted the purshis before the learned trial Court permitting him to withdraw the said suit unconditionally. That the learned Civil Judge (S.D.), Gandhinagar disposed of the said suit as withdrawn considering the purshis submitted at Exh.17 in the said suit. It is the case of the applicant that thereafter despite the notice given to the defendants, they did not execute the sale deed as agreed (which is disputed by Shri Patel, learned advocate for the respondentsdefendants) and therefore, the applicant submitted the Miscellaneous Application No.43 of 1996 in the Court of Civil Judge (S.D, Gandhinagar granting the permission to restore the aforesaid suit to file and consider the same on merits. The said application has been dismissed by the learned trial Court mainly on the ground that as suit was withdrawn unconditionally, in exercise of powers under Section 151 of the Code of Civil Procedure, such an application is not maintainable.
3.0 Considering the decision of the Hon'ble Supreme Court in the case of Jet Ply Wood (P) Ltd and Another vs Madhukar Nowlakha and Others reported in (2006) 3 SCC 699 taking view that an application to recall the order withdrawing the suit would be maintainable under Section 151 of the Code of Civil Procedure. Learned advocates for the respective parties do not invite any further reasoned order and have requested to remand the matter to the learned trial Court for deciding the same afresh in accordance with law and on merits. Learned advocates for the respective parties have requested to make suitable observation that all the contentions which might be available to the respective parties are kept open, which be considered by the learned trial Court while deciding the application afresh in accordance with law and on merits.
4.0 In view of the above, this Court is not assigning any further reasons while quashing and setting aside the order passed by the learned trial Court and remanding the matter to the learned trial Court for deciding the same afresh in accordance with law and on merits.
5.0 In view of the above and for the reasons stated above, present Civil Revision Application is allowed in part and the impugned order passed by the learned Civil Judge (S.D.), Application No.43 of 1996 is hereby quashed and set aside and the matter is remanded to the learned Civil Judge (S.D.), Gandhinagar to decide the said application afresh in accordance with law and on merits. It is further observed that all the contentions which might be available to the respective parties are kept open, be considered by the learned trial Court while deciding the said application in accordance with law and on merits. Considering the fact that the application is of the year 1996, learned trial Court is directed to decide and dispose of the said application at the earliest but not later than six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. Registry is directed to send the writ of this order to the learned Civil Judge (S.D.), Gandhinagar immediately. It goes without saying that the ad interim relief granted earlier while admitting the present Civil Revision Application is directed to be continued till the application on remand is finally decided and disposed of by the learned trial Court.
kaushik sd/ (M.R.SHAH,J.)