1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner herein - original petitioner to quash and set aside the impugned order dated 27/02/2007 passed by learned Principal Senior Civil Judge, Bardoli in Restoration Application No.1 of 1998, by which, learned Trial Court has dismissed the said application preferred by the petitioner herein
- original defendant No.2, which was submitted to restore Restoration Application No.B/16/1995, which came to be dismissed for non-prosecution/dismissed for default, which was submitted to set aside the judgement and decree passed in Special Civil Suit No.343 of 1992.
2. It appears that respondent No.1 herein - original plaintiff instituted Special Civil Suit No.343 of 1992 in the court of learned 2nd Joint Civil Judge (S.D.), Surat Camp at Bardoli to recover an amount of Rs.96,034/-. That learned Trial Court passed ex-parte judgement and decree dated 13/07/1995. It appears that thereafter the petitioner herein - original defendant No.2 preferred Restoration Application No.B/16/1995 to set aside the ex-parte judgement and decree passed in Special Civil Suit No.343 of 1992. It appears that learned advocate appearing on behalf of the petitioner remained negligent and did not pay process in the said application and did not remain present in the aforesaid application to set aside ex-parte judgment and decree though the said application was adjourned twice and, therefore, learned 2nd Joint Civil Judge (S.D), Surat camp at Bardoli dismissed the said Restoration Application No.B/16/1995 for default for non-appearance of his advocate in the court. The petitioner herein submitted the Restoration Application No.1/1998 to restore the said Restoration Application No.B/16/1995 by submitting that it was negligence on the part of the advocate appearing on behalf of the petitioner and learned Principal Senior Civil Judge, Bardoli vide impugned order dated 27/02/2007 dismissed the said application and has refused to restore Restoration Application No.B/16/1995.
Being aggrieved by and dissatisfied with the impugned order passed in Restoration Application No.1 of 1998, which was submitted to restore Restoration Application No.B/16/1995, the petitioner herein - original defendant No.2 has preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
3. Though served, nobody appears on behalf of respondent No.1 herein - original plaintiff.
4. Having heard learned advocate appearing on behalf of the petitioner and considering the impugned order dated 27/02/2007 passed by learned Principal Senior Civil Judge, Bardoli in Restoration Application No.1 of 1998, it appears that learned Trial Court has materially erred in not restoring the Restoration Application No.B/16/1995. It appears that the matter was adjourned twice and as learned advocate appearing on behalf of the petitioner did not remain present and even did not pay process fees, Restoration Application No.B/16/1995 came to be dismissed for non-prosecution. It is held in catena of decisions that for negligence on the part of the advocate, the parties should not be made to suffer. Under the circumstances, the impugned order passed by learned Trial Court dismissing the Restoration Application No.1/1998, which was submitted to restore Restoration Application No.B/16/1995 cannot be sustained and the same deserves to be quashed and set aside.
5. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application is allowed and the impugned order dated 27/02/2007 passed by learned Principal Senior Civil Judge, Bardoli in Restoration Application No.1 of 1998 is hereby quashed and set aside and the said restoration application is allowed and consequently Restoration Application No.B/16/1995 in Special Civil Suit No.343 of 1992 is hereby restored to file, which is now to be considered by learned Trial Court in accordance with law and on merits. Rule is made accordingly. No costs.
[M.R.SHAH,J] *dipti Top