Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.D. Kothari, J.
Vishnubhia Arjanji Vaghela – Appellant
Vs.
Rameshchandra Khodidas Patel and Ors. – Respondents
Misc. Civil Application (for Review) No. 1414 of 2016 in Civil Application No. 12258 of 2015 in Appeal from Order-Stamp Number No. 319 of 2015
Decided On : 09-06-2016
Review Application - Leave to Appeal - CPC - Sections 92, 96, 104 - Summary of Acts and Sections: The court discussed the provisions of the Civil Procedure Code (CPC) including Sections 92, 96, and 104, and their interpretations in relation to the right of a third party to file an appeal. The court also considered the legal principles established by various case laws regarding the conditional right of a third party to file an appeal.
Fact of the Case:
The applicant sought to review/recall the order granting leave to appeal without notice to the other party. The suit was filed for specific performance against the original owner, and subsequent purchasers, who were not parties to the suit, sought leave to appeal.
Finding of the Court:
The court rejected the review application, emphasizing the conditional right of a third party to file an appeal and the absence of a specific provision in the CPC for the time period within which leave to file an appeal should be filed.
Issues: The issues included the maintainability of the review application, the right of a third party to file an appeal, and the sequence of considering leave to appeal and condonation of delay applications.
Ratio Decidendi: The court held that the absence of a specific provision in the CPC for the time period within which leave to file an appeal should be filed takes away the basis of the applicant's plea to hear the delay condonation application first.
Final Decision: The court rejected the review application and discharged the rule, indicating that the present Miscellaneous Civil Application stands rejected.
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.
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 in favour of present opponents. The trial court granted interim relief in favour of present applicant. Aggrieved by that order, present opponent who is not party to the suit, has moved this Court praying for leave to appeal. This Court by order dated 6.11.2015, as stated above, granted leave. Present applicant seeks recall/review of the said order.
4.1 It may also be stated that since the time to file appeal was lapsed, application for leave to appeal was filed along with application for condonation of delay. Therein, this Court has issued notice. One of the questions raised for consideration is, whether leave to appeal should be heard first or condonation of delay is to be considered first?
5. Heard learned advocates for the parties.
6. Shri Desai, learned advocate for the applicant has made two fold submissions at the time of hearing; firstly, the CPC does not provide anywhere granting leave to appeal. Application of the opponent does not mention any specific provision. It is also submitted that in absence of any specific provision in the CPC, ex-parte leave to appeal cannot be granted to the party. The other submission is there is specific provision under Order 1 Rule 10 for joining party. The opponent ought to have resorted to Order 1 Rule10 in the pending suit. If the Court rejects the application, the opponent has remedy to approach the higher forum. If the Court allows the same then, there is a remedy to apply for modifying the interim relief under Order 39 Rule 4. In view of such specific provision in the CPC, resorting to challenge the order by seeking leave to appeal is not proper and legal.
7. Shri Anal Shah, learned advocate for the opponent No. 1 has submitted that review is not maintainable. In this regard, reliance was placed on language of Rule 1 of Order 47. It was submitted that applicant has not pointed out any error apparent on the face of record either of law or of facts, hence, review is not maintainable. Otherwise also, there is no order 'against him' as required under Rule1 of Order 47, therefore also, review is not maintainable. Shri Shah has also referred to Sections 96 and104 of CPC and has submitted that these provisions do not deal with the aspect, namely, who can file an appeal. Therefore, raising objection which in substance relates to plea as to who can file appeal is misplaced. Shri Shah has tried to draw analogy from Section 92 of CPC which deals with the suit is in respect of public charity. Section 92 specifically deals with obtaining 'leave of the Court.' Shri Shah has also drawn attention to the decisions in case of Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties Private Ltd. (In Liquidation), AIR 1971 SC 374, State of Punjab (now Haryana) & Ors. Vs. Amar Singh & Anr. AIR 1974 SC 994, Fakir Mohamed Abdul Razak V
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
