PREMILABEN H DABHI v. RAVINDRAKALA KANTIBHAI

7.5.1981. Meanwhile, the original defendant - Himatlal died on 1.6.1981. Thereafter, his heirs, that is, present petitioners herein moved an application being Application No.15/81 on 24.6.1981 for setting aside the exparte decree by resorting the Order 9, Rule 13 of the Civil Procedure Code. The said application was rejected by the trial court on 15.1.1985. The said order was carried in Appeal being Misc. Appeal No.26/85. The same was dismissed on 16.1.1986. Hence, the present civil revision application. #. At the time of hearing of this civil revision application, advocate for the respondents-Ms.K.J. Brahmbhatt on instructions from her clients states that, respondents have no objection if one more chance is given to the present petitioners to contest the suit and for that purpose, if exparte decree is set aside. However, the grievance of the respondents is that the defendants are interested in prolonging the litigation and that at no point of time, they showed any vigilance on their part to defend the suit.

It is pointed out that, the suit in question is of 1978 and about 22 years have already been passed. If, the said suit is required to be proceeded on merits again, it may take considerable time. It is, therefore, requested that, in the facts and circumstances of the case, an appropriate directions for disposal of the suit as well as if any appeal is preferred by either side against the decree of the trial court, necessary direction for disposal of the said appeal is also required to be given. #. Mr.Kavina, learned advocate for the petitioners has also submitted that the petitioners have no objection if the time bound programme for disposal of the suit as well as even for disposal of the appeal which might be filed by either side is given so that this old litigation may come to an end within reasonable period. #. Mr.Kavina, learned advocate for the petitioners has stated that, he has no objection if the petitioners are directed to pay reasonable amount of costs to the respondents since they have to suffer for no fault on their part.

In view of the aforesaid, without going into the merits of civil revision application, I pass the following order by the consent of the parties. #. The exparte decree passed in Regular Civil Suit No.11/78 by the learned Civil Judge (Junior Division), Khambhat on 31.7.1979 is set aside. The aforesaid suit is restored on the file of the learned Civil Judge (Junior Division), Khambhat. The learned Civil Judge (Junior Division), Khambhat is directed to proceed with the said suit on day to day basis. The said suit to be proceeded further from the stage of framing of the issues as I am told that issues have been framed by the learned trial Judge. The defendants shall be permitted to lead their evidence and if the plaintiffs want to submit their further evidence, they are also entitled to lead the same. However, the trial court will proceed on day to day basis for recording the evidence as well for hearing the arguments of the parties and in any circumstances, the suit must be decided by 31.8.2000.

Both the sides, that is, plaintiffs and defendants may remain present before the learned Civil Judge (Junior Division), Khambhat on 4.5.2000 so that the trial court may not have to issue fresh summons to the parties again. After the aforesaid appearance of the parties, the trial court may fix the hearing of the suit. #. Mr.Kavina, learned advocate for the petitioners, undertakes and assures this court that, his clients will not take any unreasonable adjournment from the trial court and will fully cooperate in disposal of the said suit by the aforesaid time. The learned trial court may also send the compliance report after disposal of the said suit to this court. Looking to the fact that, it is an old proceedings, both the side agreed before this court that, if an appeal against the decree of the trial court is required to be preferred by either side, they will also cooperate in disposal of the said appeal and that the appellant of the said appeal will immediately submit the paper book at his own costs.

It is, therefore, hope that as and when such an appeal is filed by the aggrieved party, the appellate court may also make all efforts to see that the said appeal is disposed of as far as possible within a period of three months from filing of the same, so that, this old litigation may come to an end. #. Ms.Brahmbhatt states that, opponents original plaintiffs have agreed for sending the matter back by setting aside the exparte decree with the hope that this old suit is decided at the earliest on merits. Therefore, I have given the aforesaid directions for disposal of the appeal also if such appeal is filed. Prima facie it seems that, the respondents have not shown their vigilance in the trial court at the time of pendency of the suit or even in pursuing the application filed under Order 9, Rule 13 of the Civil Procedure Code, I direct the petitioners to pay Rs.5,000/- (Rupees five thousand only) as costs of this litigation to the respondents. The aforesaid amount of costs is directed to be deposited in the trial court on or before

15.6.2000. R & P of Civil Suit No.11/78 be sent back to the court of Civil Judge (Junior Division), Khambhat forthwith so that there may not be any further delay on the aforesaid count. Rule is accordingly made absolute to the aforesaid extent. Writ of this order be sent to the trial court forthwith. (cid:9) (cid:9)(P.B.Majmudar,J) (pathan) (cid:9) (cid:9) (cid:9)