2008 Supreme(Bom) 1512
Mh.L.J. 2009(1) 979
A. H. Joshi, J.
SHOBHA BAJIRAO DAMODAR – Applicant.
Versus.
TRIRA TNA KRIDA AND SHIKSHAN PRASARAK MANDAL, AKOLA and others – Respondents .
Misc. Civil Appln. (Review) S1. No. 11047 of 2008 and MCA No. 1294/08 in W. P. No. 592 of 2008
Decided on 17-10-2008.
ADVOCATE APPEARED:
For applicant-original respondent No.1: DCR Mishra
For original petitioner: Shirsat
Headnote:Civil Procedure Code, O. 47, R. 1 :- With the ulterior motive of seeking a de novo hearing on merits, review petition filed changing the Advocate while the earlier Advocates still continues on record without anything to justify change of the advocate, the court had rightly deprecated the conduct of the litigant and imposed a cost of Rs.500/-
2. Heard.
3. The grounds for review, as averred in the application, are revolving around a 'fact' that :
(a) The alleged President - Shri Shyamrao Kisan Chavan has no authority to initiate disciplinary proceedings against the applicant, as there are groups in the Management and Change Report proceedings are pending.
(b) That the request made by alleged President - Shri Shyamrao Kisan Chavan seeking permission to suspend the respondent No. 1 present applicant is also rejected, as the status of Shri Chavan, acting President of the Society, was in dispute.
(c) That the interim relief should not have been granted by this Court while admitting the petition in the aforesaid factual matrix.
4. Copy of alleged order of refusal of permission for suspension was not placed on record, however, said aspect is repeated during oral submissions.
5. The Farad Orders in Writ Petition No. 592 of 2008 indicate that on 2nd April, 2008, the petition was ready for hearing in view of amendment, additional paper-book, service of copies thereof etc., and the Writ Petition was then ordered to be listed on 4th April, 2008, however, the petition was listed on 7th April, 2008, and at the request of petitioner's Advocate, it was adjourned.
6. At the request of present applicant's Advocate, hearing was adjourned on four occasions without any reply being filed.
7. According to learned Adv. Mr. Shirsat for the writ petitioner, the adjournments were sought after hearing had occurred for considerable durations, and on seeing that Court had indicated that Writ Petition would be entertained with interim relief.
8. Adv. Mr. Shirsat then urged that this Court had passed order dated 6th May, 2008 after hearing oral submissions of the petitioner and the respondents, and then granted Rule and interim relief in terms of Prayer Clause (ii), and learned Advocate Mr. A. M. Ghare had also waived service for respondent No.1.
9. It is seen that thereafter, i.e., after interim order was passed, the present applicant has changed Advocate, and has filed reply on 24th June, 2008 and brought on record the factual grounds, such as existence of disputes in the Management, and made efforts by filing application for vacation of stay/modification of interim order.
The application for vacation of stay is disposed with liberty to the respondent No. 1 to move for that purpose appropriately.
10. It is in the aforesaid background and for the said purpose, present application for review is filed.
11. In the present application, amongst other grounds as to dispute inter se the Management, want of authority with the person who represents the Society as a President is urged to be a crucial ground, stating that these matters go to the root.
12. It is clear that at the time of admission-hearing when the order of rule and interim relief was passed, this Court was led by the facts as found in the petition and annexures thereto. These facts so emerging had gone unchallenged in spite of four adjournments, and the petition was heard in absence of any traverse.
13. It is not the case of responaent No. 1 - present applicant that the oral or other request for further adjournment and request for further time to file reply was made, but was declined by the Court.
14. Any cause, much less, a reasonable cause, is shown as to why reply to the Writ Petition was not, or could not be filed.
15. It cannot be speculated as to what would have been the decision, had the material now brought on record by the present applicant by filing an Affidavit-in-Reply would have been before this Court when order sought to be reviewed was passed.
16. In these circumstances, the applicant-respondent No.1 cannot blame anyone, except herself, for failing to file reply.
17. Moreover, the fact that changing the advocate and then filing an application for review is definitely liable to be depreca