BABUL HARIVADANBHAI PARIKHversusAASHABEN BABUBHAI PARIKH

     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Judge, Senior Division, Vadodara which was withdrawn by the appellant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


                                  Page 1 of 5
      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

                                  Page 2 of 5
      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

                                  Page 3 of 5
     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



                                 Page 4 of 5
          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




                                                      Page 5 of 5