SCA/11767/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11767 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RAVAL AMRATBHAI BABABHAI - Petitioner(s) Versus RAVAL BALDEVBHAI MANILAL - Respondent(s) ========================================================= Appearance : MR.RAJESH B SONI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/11/2008 ORAL JUDGMENT 1. Present petition is filed by the petitioner-original plaintiff under Article 227 of the Constitution of India challenging the order passed by the learned Additional Civil Judge, Mehsana dated 10.4.2008 passed below Exh.19 in Civil Misc. Application No.32 of SCA/11767/2008 2/4 JUDGMENT 2006 by which the learned trial court has dismissed the said application submitted by the petitioner to extend the time to deposit Rs.500/- which was required to be deposited by the petitioner as a condition for restoration of Regular Civil Suit No.106 of 1999. 2. It appears from the record that Regular Civil Suit No.106 of 1999 was instituted by the plaintiff which came to be dismissed for default and the petitioner submitted Civil Misc. Application No.32 of 2006 to restore the said suit by quashing and setting aside the order passed on 12.4.2006 below Exh.2 in aforesaid Regular Civil Suit No.106 of 1999. There was a delay in preferring the restoration application which came to be condoned and vide order dated 29.3.2007 the learned Civil Judge, Mehsana allowed the said application restoring the Regular Civil Suit No.106 of 1999 subject to payment of cost of Rs.500/- by the present petitioner to the respondent and other condition that present petitioner shall lead his evidence immediately. As per the said order the petitioner was required to deposit the aforesaid cost of Rs.500/- within a period of one month. However, the petitioner did not pay the cost of Rs.500/- to the respondent herein on the ground that the father of SCA/11767/2008 3/4 JUDGMENT the petitioner was seriously ill and he came to know about the restoration of the aforesaid suit and to deposit the amount of Rs.500/- by way of cost very late through his advocate by submitting the application Exh.19 in Civil Misc. Application No.32 of 2006. The said application came to be dismissed by the trial court by impugned order by not permitting the petitioner to pay cost of Rs.500/- and not extending the time to pay the cost of Rs.500/-. Hence the petitioner has preferred the present petition under Article 227 of the Constitution of India. 3. Though served nobody appears on behalf of the respondent. Considering the averments in the application below Exh.19 and the impugned order passed by the trial court rejecting the said application, it appears to the court that in the facts and circumstances of the case on directing the petitioner to pay further cost the trial court ought to have allowed the application Exh.19 and ought to have restored the suit and that would meet the ends of justice. 4. Shri Soni, learned advocate appearing on behalf of the petitioner has submitted that the petitioner is ready and willing to SCA/11767/2008 4/4 JUDGMENT pay further additional cost of Rs.2,500/- over and above the cost of Rs.500/- as ordered by the trial court while allowing the Civil Misc. Application No.32 of 2006 and the same shall be deposited by the petitioner with the trial court within a period of 10 days from today. 5. Considering the above, the impugned order passed by the trial court passed in Civil Misc. Application No.32 of 2006 is hereby quashed and set aside and on payment of cost which is quantified at Rs.3,000/- in all to be deposited by the petitioner within a period of 3 weeks from today. The Regular Civil Suit No.106 of 1999 is to be treated as restored and the trial court is directed to decide and dispose of the suit expeditiously. On such deposit of Rs.3,000/-, the respondent would be permitted to withdraw the said amount and the trial court is directed to pay the said amount of cost to the respondent herein by an account payee cheque on proper verification. Rule is made absolute accordingly. Direct service is permitted. ( M.R. SHAH, J. ) syed/