MAGANDAS BECHARDAS Vs. BOTHABHAI BHUVABHAI PATEL

JUDGEMENT

(1.) This appeal seeks to challenge the judgment and order of the learned 2nd Joint District Judge, Mehsana in Civil Miscellaneous Application No.77 of 1999 whereby the appellants' prayer to quash and set aside the order of the learned Extra Assistant Judge, Mehsana dated 11.3.1999 in Regular Civil Appeal No.54 of 1994 was rejected. The original Regular Civil Appeal No.54 of 1994 was preferred from the judgment and decree passed in Regular Civil Suit No.314 of 1967 on 31.1.1994. The said appeal was dismissed for default under Order 41 Rule 17 of the Code of Civil Procedure. The impugned order in Civil Miscellaneous Application No.77 of 1999 is challenged mainly on the ground that at the time of hearing of the original Regular Civil Appeal, the advocates of the appellants could not proceed for sufficient reasons and that the appellants, who are poor agriculturists, should not be made to suffer for the fault, if any, on the part of their advocates. Seven of the respondents herein have appeared on caveat and an affidavit-in-reply on behalf of the respondents is filed by the respondent No.2.

(2.) A few points from the background of facts of this case are required to be noted. The respondents are the original plaintiffs in Regular Civil Suit No.314 of 1967 which came to be decreed after about 27 years on 31.1.1994. The appeal preferred therefrom by the present appellants, being Regular Civil Appeal No.54 of 1994, was filed on 25.3.1994 and it remained pending for about five years. This appeal is stated by the respondents to have been the oldest regular civil appeal at the relevant time in the court concerned. The respondents have also averred that the hearing of that appeal was adjourned from time to time only on account of the appellants' applications on the ground that the concerned lawyers were engaged in some domestic and social work or that they could not contact their clients before the date of hearing or that the concerned lawyers and their clients could not remain present on account of some so-called unavoidable circumstances. This situation is also recorded in the order dismissing the appeal for default. In fact, the learned Judge has, while dismissing the appeal for default, observed as under:

(3.) It appears from the record that two learned advocates were engaged by the appellants to represent them in the original Regular Civil Appeal No.54 of 1994. While making an application for setting aside the ex parte order in appeal, the appellants have averred that on the date of dismissal of the appeal, one of the advocates was suddenly taken ill and during the course of that day he was supposed to remain under medical treatment and hence could not go to the court. Although no reason is given for the absence of the other advocate, it transpires from the record that an adjournment application was given by that advocate vide Ex.63 and the said application was rejected. It is noted in the impugned order that the first mentioned advocate Shri C.G.Bhavsar has not filed any affidavit and has not produced any documents regarding his sickness and no reason is given as to why the other senior advocate Shri R.D.Shah did not remain present on 11.3.1999 when the appeal was dismissed for default. In this context, an affidavit of Shri C.G.Bhavsar is filed in the present proceedings vide Civil Application No.4646 of 2000. The affidavit reads as under: