1.0 Rule. Mr. Ashish Shah, learned Advocate and Mr. Jaswant K Shah, learned Assistant Government Pleader waive services of notice of rule on behalf of the respective respondent.
2.0 The petitioners herein in the present petition challenged the order dated 09.10.2006 as well as order dated 19.12.2011 whereby the application being Application No. 9 of 2005 filed by the petitioners came to be dismissed for default and also the restoration Application No. 5/2010 came to be summarily rejected by the Gujarat Primary Education Tribunal. The petitioners further prayed to restore the Application No. 9 of 2005 to its original file qua the petitioners and direct the learned Tribunal to hear and decide the said application on merits.
3.0 It is the case of the petitioners that they have approached the learned Tribunal challenging the action on the part of the School Management in terminating their services. They have engaged an Advocate for conducting the said application. The petitioners were not informed by the Advocate with regard to the date and therefore, they could not remain present before the Tribunal on the date on which the application was fixed for hearing. However, the application came to be dismissed by order dated 09.10.2006 as none had remained present for the petitioners even at the second call of the matter. The concerned advocate has not informed the petitioners with regard to the dismissal of the matter for default and the petitioners were under bonafide impression that their matter is pending adjudication. When the petitioners came to know about the dismissal of the application, they approached the Advocate and they were informed that their matter will be restored. However, on inquiry the petitioners came to know that the said Advocate has not filed any application and the vakalatnama was also not presented and therefore the papers of the matters were taken away and the petitioners engaged another Advocate. The another advocate moved an application for restoration being Application No. 5 of 2010 along with separate condonation application before the Tribunal. The application for restoration was heard by the learned Tribunal and vide order dated 19.12.2011 the learned Tribunal rejected the application confirming the order of dismissal of the application for default for default. Hence, this petition.
4.0 Learned advocate for the petitioners submitted that the petitioners should not be penalized for the fault on the part of the advocate.
5.0 Mr. Shah, learned advocate for the respondents submitted that earlier the petitioners had filed Miscellaneous Application on 07.07.2010 for restoration of Application No. 9. of 2005 wherein it was stated by the petitioners that they have received the order of dismissal of their main application for default on 30.12.2008 and the delay application was filed. However, on 11.10.2010 advocate submitted a pursis to the effect that the petitioners had taken back the papers from him and he may be permitted to retire from the aforesaid matter. Subsequently the petitioners have filed another Restoration Application No. 5 of 2010 through another advocate wherein the grounds stated in the application are different from the earlier application as well as delay application. Hence, there are contradictions in the pleadings.
6.0 Looking the facts and circumstances of the case it is found that there was fault on the part of the advocate and therefore, in my view the petitioners should not suffer on account of the fault on the part of their advocate. Technicality should not be entertained while deciding the matter on merits. If the delay is condoned at the most the matter may be heard on merits. This would not cause any prejudice to either party. On the contrary if delay is not condoned the party may not get justice in a meritorious matter. Therefore, in the interest of the justice, the matter is required to be entertained, since it is dismissed for default. Accordingly the impugned orders qua the petitioners are quashed. The restoration application No. 9 of 2005 is restored to its original file qua the petitioners by imposing cost quantifying Rs. 5000/ upon the petitioner which shall be paid to the respondents. No. 1 2, and 4 . Rule is made absolute with no order as to costs. Direct service is permitted.
(K.S.JHAVERI, J.) niru*