(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) ADMIT. Learned Counsel, Mr. K.V. Shelat, waives service of admission on behalf of the respondents.
1. This letters patent appeal is directed against the order of the learned Single Judge, passed in Miscellaneous Civil Application No.1725 of 2011 dated 05.08.2011. By the impugned order, the learned Single Judge rejected the said application and refused to grant the prayer of the applicants to restore the main matter i.e. Special Civil Application No.7115 of 2010 on file, which was dismissed for default on 30.11.2010.
2. The appellants, herein, filed Special Civil Application No.7115 of 2010, challenging the order passed by the Gujarat Revenue Tribunal. As argued by the learned Counsel, Mr. Shelat, for the respondent, said petition was filed after considerable time from the date of passing of the order by the Revenue Tribunal. The aforesaid matter came up for admission hearing before the learned Single Judge on 30.11.2010. On the said date, the learned Single Judge observed in his order that when the matter was called out in the first half, learned Counsel, Mr. Asthavadi, was not present. But, the Court instead of dismissing the matter for non-prosecution, kept the matter for the second round. In the second round, when the matter was called out, learned Counsel, Mr. Asthavadi, appeared and requested the Court to adjourn the matter on the ground that he was not having the papers of the said matter with him. The learned Single Judge declined to adjourn the matter and asked Mr. Asthavadi to take the papers of the Court and to argue the matter. But, the learned Counsel expressed his inability to argue the matter. The learned Single Judge, therefore, dismissed the matter for non-prosecution by passing the order to that effect on 30.11.2010.
3. It seems that after a lapse of considerable time i.e. after about 100 days, a Miscellaneous Civil Application, for restoration of the main matter, was filed by the appellants, herein. The learned Single Judge, by his order dated 05.08.2011, rejected the said application. However, the learned Single Judge refrained himself from imposing any costs on the applicants-the appellants, herein. It is the aforesaid order, which is challenged by way of the present appeal.
4. Learned Counsel, Mr. Asthavadi, appearing for the appellants-original petitioners submits that on 30.11.2010, when the matter was placed for admission hearing before the learned Single Judge, he had appeared before the learned Single Judge at the second call and requested for time, since, he was not having the papers of the matter. He, further, submitted that in the interest of justice, the court could have ordered to place the matter on any future date. He submitted that he was ready to argue the matter had the same been adjourned to some other date. He, further, submitted that the learned Single Judge ought to have restored the matter on file, in the interest of justice, even by imposing some costs on the applicants-the appellants, herein.
5. On the other hand, learned Counsel for the respondents, Mr. Shelat, has opposed the appeal and has stated that the present appellants have no case on merits worth the name, as there is concurrent finding of fact recorded by both the Authorities below. It is, further, argued by him that so far as order of the learned Single Judge dated 30.11.2010 is concerned, same is an ex parte order, as no notice was issued to the respondents. He also submitted that, as there is no merit in the main matter, the restoration of main petition would become a futile exercise.
6. We have heard learned Counsel for the parties. It is not in dispute that on 30.11.2010, the matter was placed before the learned Single Judge for admission hearing. There is nothing in the impugned order to suggest that even on earlier occasion also, when the main petition was placed before the concerned Single Judge, adjournment was sought by the learned Counsel for the appellants. It is also not a case, wherein the advocate did not remain present before the learned Single Judge even when the matter was called out in the second round. It is an admitted position that the learned Counsel for the appellants did remain present before the learned Single Judge and requested for time on the ground that he was not having the papers of the main matter, but, in spite of that the learned Single Judge dismissed the main matter for non-prosecution. It is not a case where the appellant failed to remain present even during the second call. In such an eventuality, the Court can dismiss a matter for default. However, in the present case, the learned Counsel remained present before the learned Single Judge and requested for time on the ground of non-availability of the papers of the matters. It is the consistent practice of this Court that when a matter is dismissed for default, if a request is made on the same day for its restoration, generally, such a request is granted.
7. In the instant case, the matter was not dismissed on merits and the same was dismissed for non-prosecution, though, the learned Advocate, admittedly, remained present before the Court. Considering the aforesaid factual aspects of the matter, in our view, the appellants are required to be given one opportunity to have their matter argued on merits before the learned Single Judge. The learned Counsel, Mr. Asthavadai, for the appellants has given an oral UNDERTAKING before this Court that as and when the main matter is listed for hearing before the learned Single Judge, he shall remain present and argue the matter on merits.
8. In the result, the appeal is ALLOWED, on condition that the appellants will pay costs of total Rs.3000/- to the respondents within a period of TWO WEEKS, from today. Subject to payment of the costs, as stated above, Miscellaneous Application No.1725 of 2011 stands ALLOWED and the Registry is directed to list the main matter for admission before the concerned Court, on 18TH JULY, 2012.
9. It is clarified that we have not dealt with the argument of the learned Counsel, Mr. Shelat, that there is no merit in the main matter and the same is kept open for the consideration of the learned Single Judge.
(P.B.
MAJMUDAR, J.) (MOHINDER PAL, J.) Umesh/ Top