LEGAL HEIRS OF HUSAINALI BABUBHAI VASAYA vs ABBASALI BAHADURBHAI KHOJA
- Court
- Gujarat High Court
C/SCA/11387/2026 (GJHC240573202026) JUDGMENT DATED: 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11387 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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LEGAL HEIRS OF HUSAINALI BABUBHAI VASAYA & ORS.
Versus
ABBASALI BAHADURBHAI KHOJA & ORS.
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Appearance:
MR MALAY S PATEL(8901) for the Petitioner(s) No. 1,1.1,1.2,1.3
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/09/2026
JUDGMENT
1. At the outset, Mr. Dhruvik K. Patel, learned advocate
would request this Court to allow him to appear on behalf of
the respondent no.1.
2. Permission as prayed for is granted.
3. Mr. Dhruvik K. Patel, learned advocate, is permitted to file
his vakalatnama on behalf of respondent no.1. The registry
shall accept the same.
4. Heard Mr. Malay S. Patel, learned advocate for petitioner
and Mr. Dhruvik K. Patel, learned advocate for respondent
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no.1, the presence of respondent nos.2 to 6 herein are not
required for adjudication of this petition, as they are
supporting respondents to the petitioner.
5. Rule returnable forthwith, Mr. Dhruvik Patel, learned
advocate waives service of notice of rule on behalf of the
respondent no.1.
6. This petition is filed under Article 227 of Constitution of
India seeking following relief:
A) That the Hon'ble Court may be pleased to admit this
petition.
B) That the Hon'ble Court may be pleased to allow the
present SCA by issuing appropriate writ order for Quashing
and setting aside the Impugned order passed by LD.
Principal Senior Civil Judge, Talaja on dated 04.05.2023 in
Misc. Civil Misc. Application no. 02 of 2021 (At Annexure - E),
and further Quashing and setting aside the impugned order
passed by LD. Principal Senior Civil Judge, Talaja on dated
08.07.2024 in Misc. Civil Misc. Application no. 15 of 2023 (At
Annexure F) to this petition and further quashing and setting
aside the Impugned order passed by LD. Additional District
Judge, Talaja Bhavnagar on dated 10.06.2026 in Misc. Civil
Appeal no. 03 of 2024 (At Annexure G) accordingly kindly
allow the application by restoring the RCA no. 150 of 2019 in
the interest of justice.
D) Grant such other and further relief(s) as deemed just and
proper by this Hon'ble Court in the interest of justice.
7. Mr. Malay Patel, learned advocate for the petitioner,
would submit that trial Court as well as Appellate Court both
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have taken very hyper-technical approach while adjudicating
the impugned application seeking restoration of Civil Misc.
Application No.2 of 2021 which was dismissed for non-
prosecution by the trial Court on 04.05.2023.
7.1 It is submitted that day, on which, the aforesaid
application came to be listed before the trial Court, learned
advocate appearing on behalf of the petitioner was suffering
from medical illness (stone pain) and accordingly sought for
adjournment which was not granted by the trial Court and due
to such reason, the aforesaid application came to be dismissed
for non-prosecution.
7.2 Mr. Patel, learned advocate would further submit that
while adjudicating the impugned restoration application being
Civil Misc. Application No.15 of 2023, trial Court as well as
Appellate Court, had considered the past conduct of the
petitioner, whereby the suit was dismissed for non-prosecution
wherein the restoration application was filed, rather,
considered the cause which was prevalent the advocate not to
appear as on the date of hearing of application, i.e.,
04.05.2023.
7.3 Mr. Patel, learned advocate would further submit that by
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imposing reasonable cost upon the petitioner, the Courts below
ought to have restored the restoration application being CMA
No. 2 of 2021 in the interest of justice, thereby that application
could have been decided on its own merit. He would further
submit that if this Court will impose such condition, the
petitioner will pay reasonable cost to the respondent no.1 and
also undertake to this Court that without any further delay,
petitioner will conduct CMA No.2 of 2021.
8. Per contra , Mr. Dhruvik Patel, learned advocate
appearing for respondent no.1, has opposed this petition
contending inter alia that, considering the previous conduct of
the petitioner who never remained present and shown his
willingness to conduct the suit filed by him, ultimately the trial
Court had no option left but to dismiss the suit for default
wherein the restoration application was filed by the petitioner,
but same was also dismissed for non-prosecution, wherein the
petitioner had filed CMA No.2 of 2021.
8.1 It is submitted that petitioner was expected to conduct
the restoration application rigorously and without delay, it
could have been pursued by the petitioner. It is further
submitted that for any reason, the advocate of the petitioner
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was not ready to conduct the aforesaid application which
ultimately resulted into dismissal of such application by trial
court vide its order dated 04.05.2023.
8.2 It is further submitted that trial Court as well as Appellate
Court has given cogent reasons for not allowing the impugned
restoration application being CMA No.15 of 2023 and this Court
may not entertain this petition.
8.3 At last, Mr. Patel, learned advocate for the respondent
no.1, would submit that in case if this Court grants one
indulgence in favour of the petitioner, the stricter condition
may be imposed upon the petitioner and cost shall be imposed
upon petitioner, whereby the petitioner shall pursue the
restoration application being CMA No.2 of 2021 without further
delay.
9. Having heard learned advocates for respective parties
and taking into account the fact that restoration application
being CMA No.2 of 2021 appears to be dismissed for non-
prosecution by trial Court vide its order dated 04.05.2023 on
the ground that learned advocate for the petitioner appearing
in the suit proceeding was not interested to pursue the matter
and sought unnecessary adjournments.
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9.1 It is not disputed by respondent no.1 that on 04.05.2023,
an adjournment application was filed in CMA No.2 of 2021 on
the ground that learned advocate for the petitioner was
suffering from pain of stone.
9.2 It may be true on previous occasions, the learned
advocate concerned may not have turned up to argue
aforesaid application, but at the same time, the day on which it
was listed before the trial court and such cause was stated in
the adjournment application, the trial court ought to have
taken that fact into account rather previous event. According
to my view, the trial court could have imposed cost while
deferring the hearing of CMA No.2 of 2021 and by imposing
certain other conditions, the matter could have been decided
on merits on next date of hearing.
9.3 This aspect has been completely lost sight by Courts
below while adjudicating the restoration application being CMA
No.15 of 2023; rather, the Courts below have carried away
with the fact that previously the suit was dismissed for default
and the restoration application being CMA No.2 of 2021 was
also dismissed for negligent act on the part of the petitioner,
thus, the Courts below had not entertained the impugned
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application.
9.4 Thus, considering the aforesaid facts and circumstances
and taking into account the fact that application in CMA No.2 of
2021 was dismissed for non-prosecution on 04.05.2023, and on
that date, learned advocate appearing for the petitioner,
sought an adjournment on medical grounds, according to my
view, the trial court ought to have considered such request in
the interest of justice maybe by imposing condition including
cost.
9.5 Having considered the aforesaid facts and circumstances
of the case, according to my view, the impugned orders are
required to be quashed and set aside, inasmuch as one
opportunity is required to be granted to the petitioner in the
interest of justice. At the same time, considering the previous
conduct of the petitioners and even while allowing the
impugned restoration application being CMA No.15 of 2023,
the petitioner are required to pay cost to respondent no.1, who
is mainly contesting respondent in the suit.
10. Accordingly, I pass following orders:
(i) The impugned order dated 10.06.2026 passed by learned
Additional District Judge, Talaja, Bhavnagar, in Civil Appeal
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No.3 of 2024 as well as order dated 08.07.2024 passed by
learned Principal Senior Civil Judge, Talaja, Bhavnagar in Civil
Misc. Application No.15 of 2023, is hereby quashed and set
aside.
(ii). The impugned restoration application being CMA No.15 of
2023 is allowed subject to petitioner, shall pay a sum of
Rs.10,000/- to respondent no.1 and also deposit a sum of
Rs.10,000/- with DLSA, Bhavnagar, on or before 18.09.2026.
(iii). The trial court is hereby directed to hear and decide the
restoration application being CMA No.2 of 2021 on its own
merit. The rights and contentions of the respective parties are
hereby kept open to be agitated before the trial court during
the course of hearing of the aforesaid application.
(iv) It is needless to say that it is open for the respondent
no.1 to raise the issue of maintainability of restoration
application being CMA No.2 of 2021.
(v) Since the petitioners have undertaken before this Court
to seriously pursue the restoration application being CMA No.2
of 2021, no unnecessary adjournment shall be sought by the
petitioner. The parties are expected to extend their co-
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operation to the trial court for early adjudication of the said
application.
11. In view of the foregoing observations, discussions and
reasons, the present petition is partly allowed . Rule made
absolute to the aforesaid extent. Direct Service is permitted.
(MAULIK J.SHELAT,J)
DEEPAK GEHLOT
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