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2016 Supreme(Guj) 882

R.D.KOTHARI
Vishnubhia Arjanji Vaghela – Appellant
Versus
Rameshchandra Khodidas Patel – Respondent


Advocates Appeared:
For the Appellant :Anshin Desai for Ruturaj Nanavati, Advocate.
For the Respondent:Anal S. Shah, Advocate.

Judgement Key Points

The legal document primarily discusses the conditional right of a third party to file an appeal and the procedural aspects related to the grant of leave to appeal, especially in the absence of explicit statutory provisions specifying the time frame within which such leave should be filed. It emphasizes that the Civil Procedure Code (CPC) does not contain a specific provision that mandates a particular period for filing leave to appeal by third parties, which impacts the sequence of considering applications such as delay condonation and leave to appeal.

The court clarified that the absence of a statutory period for filing leave to appeal means that the applicant's plea to hear delay condonation applications prior to the leave application lacks a legal basis. It also highlighted that the right of a third party to appeal is conditional, requiring the party to demonstrate that they are adversely affected or have a vested interest in the subject matter, and that such right does not necessarily depend on explicit statutory provisions but can be inferred from established case law principles.

Furthermore, the court rejected the review application on the grounds that the procedural objections raised, including the alleged illegality of granting leave without notice, do not hold under the current legal framework. It reaffirmed that the grant of leave to appeal, even if ex parte, does not automatically vitiate the appellate process, and procedural irregularities such as lack of prior notice do not render the order illegal per se.

In summary, the key points are: - The absence of a specific statutory period in the CPC for filing leave to appeal by third parties implies that the sequence of hearing applications (leave versus delay condonation) is flexible and context-dependent (!) (!) . - The conditional right of a third party to appeal is recognized based on their interest and potential prejudice, even without explicit statutory provision (!) (!) . - Granting leave to appeal without prior notice does not necessarily invalidate the order, and procedural irregularities do not automatically render such orders illegal (!) . - The court upheld the procedural discretion of the court in granting leave and dismissed the review application, reinforcing that procedural irregularities must be substantial to affect the validity of orders (!) (!) .

This understanding underscores that procedural flexibility exists in appellate procedures, especially concerning third-party rights, and procedural irregularities must be significant to impact the validity of orders.


JUDGMENT :

R.D. Kothari, J.

1. Rule. Mr. Anal S. Shah, learned advocate waives service of Rule on behalf of respondent No. 1.

2. With the consent of learned advocates for the parties, the matter is taken up for final hearing.

3. Couple of interesting points are raised by learned advocate for the applicant in this review application. The applicant prays to review/recall the order passed by this Court on 6.11.2015 whereby, the leave to appeal was granted to the opponent No. 1 herein. It is the say of the applicant, inter-alia, that leave to appeal without issuance of notice to the other side is bad and illegal.

4. Relevant facts for consideration of this application are thus; a suit is instituted by the present applicant for specific performance in the court of learned Principal Senior Civil Judge, Kalol. Said suit is instituted against the original owner. Present opponents are the subsequent purchasers of the property in whose favour the owners have executed the sale deed. In the suit, present opponent is not made party. however, there is a reference to the sale deed in favour of the present opponents. It is not in dispute that there is a reference in the plaint to the sale deed executed







































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