C/SCA/6263/2025 ORDER DATED: 13/10/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 6263 of 2025 ============================================= GOPALBHAI KABABHAI BHARWAD & ORS. Versus RAJESHKUMAR BIPINCHANDRA RAJYGURU ============================================= Appearance: MR VASIMKHAN Y PATHAN(11992) for the Petitioner(s) No. 1,2,3 MR VIVEK V BHAMARE(6710) for the Petitioner(s) No. 1,2,3 MR BHAVIN B THAKAR(9371) for the Respondent(s) No. 1 ============================================= CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT Date : 13/10/2025 ORAL ORDER 1. Rule returnable forthwith. Learned advocate Mr.Rahil Jain waives service of notice of Rule for the respondent. 2. Heard learned advocate Mrs.Nalini Parikh for the petitioner and learned advocate Mr.Rahil Jain for the respondent. 3. With the consent of the parties, the matter is taken up for hearing today. 4. This Court vide its order dated 06.05.2025 passed the following order : “1. Heard learned advocate Mr Vivek V Bhamare for the petitioner. 2. Learned advocate Mr.Bhamare would submit that the trial court has taken a very hyper-technical approach while considering the delay application so filed by the petitioners, who happen to be legal heirs of the original plaintiff who died during the pendency of the suit proceeding. Page 1 of 5 C/SCA/6263/2025 ORDER DATED: 13/10/2025 2.1 Learned advocate Mr.Bhamare would submit that the trial court has erroneously observed that petitioners- applicants have not disclosed the date of death of his father. Inasmuch as, such reference has been given by the petitioners in their restoration application, whereby it has been shown clearly stated in paragraph 4 of the restoration application that the original plaintiff - father of the petitioners died on 17.07.2017. 2.2 Learned advocate Mr.Bhamare would submit that while considering the delay application filed by the petitioners, advocate of the plaintiff has either not remained present or not led any evidencem would not be required to consider by the trial court. 2.3 Learned advocate Mr.Bhamare would further submit that when the petitioners came to know about land grabbing complaint so filed against them by the defendants in the year 2023 / 2024, with the help of a lawyer, restoration application with delay application was filed by the petitioners. 2.4 Learned advocate Mr.Bhamare would further submit that so far as the fact of land grabbing complaint is concerned, having not stated by the petitioners either in delay or restoration application, but clearly stated by the respondent defendant in their reply, which confirmed that petitioners were not in knowledge of the present suit so instituted by their father. 2.5 Lastly, Learned advocate Mr.Bhamare would submit that one opportunity ought to have been granted to the petitioners to adjudicate the suit, which was instituted by their father and to call upon the other side, the petitioners are ready to pay a reasonable cost. 3. Prima facie, it appears that the trial court has considered the previous conduct of the plaintiff who was unfortunately no more, having died on 17.07.2017 and issues were framed on 15.09.2017, which is after the death of his father of petitioners. 4. Further, it appears that the trial court has considered the previous conduct of the plaintiff prior to dismissal of the suit, wherein, in fact, after framing of the issues, plaintiff, having died, could not proceed with the suit unless his heirs are brought on record. The trial court was required to consider the C/SCA/6263/2025 ORDER DATED: 13/10/2025 impugned delay application on its own merits and to consider whether a sufficient cause was made out or not by the petitioner in such application. When it has been so recorded by the trial court in its impugned order that petitioner came to know about pendency of the suit proceedings when received land grabbing complaints so filed by the respondent pending, in this peculiar facts and circumstances of the case, when original plaintiff died and respondent-defendant had not brought any evidence to show that such fact was within the knowledge of legal representatives of original plaintiff, the trial court requires to consider such aspect of the matter which appears to have been lost sight of while rejecting impugned application. At the same time, the delay in filing restoration application has to some extent resulted into unnecessary engagement in the suit proceedings by the defendant for which he is required to be compensated by the petitioners. 5. Considering the aforesaid facts and circumstances of the case, issue notice for final disposal returnable on 23rd June 2025 on condition that petitioner shall deposit a sum of Rs.15,000/- with the registry of this court and Rs.5000/- with Gujarat Legal Service Authority as probable costs within two weeks from today. 6. It is open for the respondent to withdraw probable costs of Rs.15,000/- either in person or through advocate.” 5. Pursuant to the aforesaid order passed by this Court, it is reported that the amount of cost is already deposited and withdrawn by the respondent. Now, matter was heard at length by this Court. 6. Learned advocate Mr.Thakar appearing for the respondent was unable to controvert the statement of learned advocate Mr.Bhamre which is recorded by this Court in its order dated 06.05.2025. So, it is undisputed that when the issues were framed by the Trial Court, the father of the present petitioner has already died. It is also stated that they are coming from poor background and illiterate, not having C/SCA/6263/2025 ORDER DATED: 13/10/2025 complete knowledge of legal proceeding, but when the land grabbing complaint came to be filed against them by the respondent, they were made aware about dismissal of the suit. 7. It is well-settled legal position of law that while adjudicating the application, liberal approach is required to be taken by the Trial Court, inasmuch as, to advance justice between the parties, technicalities requires to be avoided by Court. It would be gainsaying that parties require to be defeated on merits rather than on technicalities and at least, Court should not be abettors. Considering the peculiar facts and circumstances of the case, as noticed hereinabove, more particularly in order dated 06.05.2025, this Court is unable to find any gross negligence, delay tactics and /or any malafide on the part of the petitioner not to prefer restoration application within the stipulated time. 8. In light of the aforesaid, present writ application requires to be allowed, which is hereby allowed. Accordingly, impugned order dated 13.02.2025 passed by the Principal Senior Civil Judge, Mehsana below Exh.13 in C.M.A No.4 of 2024 is hereby quashed. Accordingly, impugned delay application being C.M.A. No.4 of 2024 is hereby allowed. This Court has already imposed cost upon the petitioner and the respondent is already compensated in terms of money. So further order of cost is unwarranted. At this stage, learned counsel Mr.Thakar would submit that the suit instituted in the year 2014 by the father of the petitioners, remained pending for more number of years and after his death, petitioners at C/SCA/6263/2025 ORDER DATED: 13/10/2025 belated stage filed restoration application and he would request this Court that trial Court may be directed to decide the restoration application and if trial court find substance in the restoration application and if the suit is restored back on its original position, such suit be expeditiously heard and decided by the trial Court. 9. Per contra, learned advocate Mr.Bhamre would have no objection if such direction be issued to the trial court. 10. So, without prejudice to the rights and contentions of the respective parties, it is hereby observed and directed to the trial court that restoration application filed by the petitioner herein now requires to be registered and to be decided first by the trial court. If after hearing the parties, Trial Court satisfies that case is made out by the petitioner for restoration of the suit, on getting the suit restored back on file, trial court shall hear and decide the suit in question as expeditiously as possible subject to cooperation extended by parties concerned, preferably on or before 31.12.2026. So far as adjudication of restoration application is concerned, same shall be undertaken by the trial court within two months from the date of receipt of a copy of this order. Rule is made absolute, accordingly. 11. Direct service is permitted. (MAULIK J.SHELAT, J) GAURAV J THAKER Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: GAURAVKUMAR JANARDANBHAI THAKER(HC00951), Principal Pvt. Secretary, at High Court of Gujarat on 14/10/2025 11:11:20