C/FA/2173/2025 ORDER DATED: 13/07/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2173 of 2025 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/FIRST APPEAL NO. 2173 of 2025 ========================================================== BABUL HARIVADANBHAI PARIKH Versus AASHABEN BABUBHAI PARIKH ========================================================== Appearance: ARCHITA M PRAJAPATI(8241) for the Appellant(s) No. 1 RULE THROUGH SPEED POST NOT RECEIVED BACK for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 13/07/2026 ORAL ORDER (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI) Order passed below Exhibit-18 in Civil Misc. (Delay) Application No.44 of 2020 dated 26/09/2024 by the learned Principal Judge, Family Court, Vadodara seeking condonation of delay caused in filing the restoration application is sought to be assailed in this appeal. 2. The short facts of the case are that the appellant has filed HMP No.32 of 1997 seeking decree of divorce before the Court of learned Civil Judge, Senior Division, Vadodara which was withdrawn by the appellant by tendering pursis on 22./07/2000. Later on, the appellant filed fresh HMP No.261 of 2004 seeking decree of divorce which was re-numbered as HMP No.279 of 2010 on account of the new establishment of the Court. Fresh Notice was issued upon the appellant on the address where C/FA/2173/2025 ORDER DATED: 13/07/2026 earlier the appellant was residing; however one Mr.Bharatbhai Gandhi had given a statement to the Bailiff to the effect that appellant is not residing at the given address since last three years and vacated the premises and considering the said report of the Bailiff, the learned Family Court dismissed the suit for default. 2.1 The appellant had inquired about the status of the case in the Family Court, he came to know about the dismissal of his case for default and therefore, applied for certified copy thereof and filed a restoration application with application seeking condonation of delay wherein the learned Family Court after hearing the appellant rejected the said application by impugned order. 3. Heard the learned Advocate for the appellant. Though the respondent was served with the Notice, none remained present on behalf of the respondent. 4. Learned Advocate for the appellant has submitted that learned Family Court has not considered the fact that appellant was not aware of the fact of serving a notice on account of the re-numbered of the case and therefore, could not remain present before the Court. He would submit that the learned Advocate representing the appellant ought to have informed the appellant about transfer of the case from one court to another; however since the appellant was not aware of the said fact, the learned Family Court on the first returnable date dismissed the suit for non-prosecution. He would further submit that learned Family Court ought to have taken a lenient view in the matter of condonation of delay as no such prejudice would be caused to the other party if such delay is condoned since the matter pertains to the family dispute. He would further submit that since the appellant has engaged the Advocate and C/FA/2173/2025 ORDER DATED: 13/07/2026 learned Advocate representing the appellant did not remain present which cannot be said to be fault on the part of the appellant for dismissing the case for non-prosecution. 4.1 Learned Advocate for the appellant would further submit that when the notice was issued and served upon the appellant, the appellant was not residing there and one Mr.Bharatbhai Gandhi who was residing there gave a statement that appellant was not living here since last three years and on the basis of the said report of the Bailiff, the learned Family Court dismissed the delay condonation application. Whereas, in the application filed before the learned Family Court, the appellant has specifically stated about the cause of his absence at the said address since the dispute between the owner of the property and the appellant was going on and in support thereof the supporting documents were also placed; however the learned Family Court did not consider the same and therefore, learned Advocate for the appellant would submit to allow this appeal and to quash and set aside the impugned order and to condone the delay caused in preferring the restoration application. 5. Having heard the learned Advocate for the appellant and examining the order passed by the learned Family Court dismissing the delay condonation application, the undisputed fact reveals from the record is that appellant was not residing at the address mentioned in the cause-title of the application when the fresh Notice was issued by the learned Family Court on account of re-numbering the case; neither the learned Advocate representing the appellant was made aware of the said fact and the suit was dismissed for non-prosecution. It also transpires from the record that since there was a dispute between the appellant and owner of the property with regard to possession of the said property and appellant was driven out of the said property for which the court C/FA/2173/2025 ORDER DATED: 13/07/2026 proceedings were going on and in support thereof the appellant has also placed supporting documents on record to show his bona-fide as to why he was not residing at the address mentioned in the cause-title when the notice was issued by the learned Family Court and therefore it cannot be said that there was any mala-fide on the part of the appellant in not prosecuting the matter. 6. At this juncture, a reference may be made to the decision of the Hon’ble Apex Court in the case of The Secretary, Department Of Horticulture, Chandigarh & Anr Vs Raghu Raj [(2008) 13 SCC 395] wherein the Hon’ble Apex Court in paragraph 34 has held as under: “34. From the case law referred to above, it is clear that this Court has always insisted advocates to appear and argue the case as and when it is called out for hearing. Failure to do so would be unfair to the client and discourteous to the Court and must be severely discountenanced. At the same time, the Court has also emphasized doing justice to the cause wherein it is appropriate that both the parties are present before the Court and they are heard. It has been noted by the Court that once a party engages a counsel, he thinks that his advocate will appear when the case will be taken up for hearing and the Court calls upon the counsel to make submissions. It is keeping in view these principles that the Court does not proceed to hear the matter in absence of the counsel.” 7. Thus, even if there is a default on the part of the learned Advocate in not appearing at the time of hearing, the appellant should not suffer with injustice and therefore, keeping the aforesaid principle in mind, the C/FA/2173/2025 ORDER DATED: 13/07/2026 learned Family Court should take a lenient view rather dismissing the delay application caused in filing the restoration application in such cases. 8. For the foregoing reasons, the present appeal is allowed. The order passed below Exhibit-18 in Civil Misc. (Delay) Application No.44 of 2020 dated 26/09/2024 by the learned Principal Judge, Family Court, Vadodara is quashed and set aside and the delay caused in filing the restoration application filed before the learned Family Court is condoned. (ILESH J. VORA,J) (R. T. VACHHANI, J) sompura Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: MANISHKUMAR JYOTINDRA SOMPURA(HC00189), Principal Pvt. Secretary, at High Court of Gujarat on 14/07/2026 17:06:54