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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, J.
Gangaben Jesangbhai Parmar – Appellant
Versus
Nanjibhai Sagrambhai Chaudhary – Respondent
Civil Application No. 2 of 2018 in R/Second Appeal No. 238 of 2015 and Misc. Civil Application No. 1 of 2018 in R/Second Appeal No. 238 of 2015
Decided On : 14-02-2020
Civil Law - Restoration of Second Appeal - Recalling of the order - Power of attorney holder of the applicants/original appellants, seeking condonation of delay of 365 days occurred in filing Misc. Civil Application
Facts of the Case:
Applicants alongwith the said Lalitbhai Jesangbhai Parmar being the legal heirs of the deceased Jesangbhai Kachrabhai Parmar, had filed the Second Appeal through the learned Advocate Mr. Maulik Nanavati of Nanavati & Co. However, the said Second Appeal was sought to be withdrawn by the appellant-Lalitbhai Jesangbhai Parmar alone surreptitiously by engaging the learned Advocate Mr. Y.N. Ravani, without obtaining any 'No Objection' from learned Advocate Mr. Nanavati of Nanavati & CO., appearing for all the appellants on record, and further by transposing the present applicants, who were original appellants Nos. 1.1 to 1.3, 1.5 and 1.6 in the Second Appeal as the respondents. He also submitted that there was no application filed seeking amendment in the cause title nor the Court had passed any order permitting Mr. Ravani to transpose the applicants as the respondents in the Second Appeal. According to him, only the amended memo of Appeal was produced under the purported signature of Ms. Jadeja, who was working with Nanavati & Co., however the said signature of Ms. Jadeja also appears to have been forged one
Finding of the Court:
when the Court permits any advocate to withdraw the proceedings relying upon his request, it is obligatory on the part of the concerned advocate to act with full responsibility, and in accordance with the Rules in force. The office or the Registry is also duty bound to check whether the proceedings or documents are filed by the parties and their advocates in accordance with the High Court Rules in force. It was very unfortunate that Mr. Ravani instead of expressing regret, had tried to defend the opponent no. 3 during the course of his arguments, who had made him an instrumental in committing fraud on Court, while seeking permission to withdraw the appeal.
Result: Order passed by the Court permitting the opponent no. 3 to withdraw the Second Appeal isrecalled. The Second Appeal is restored on file to its original number and status. Rule is made absolute in both the applications.
JUDGMENT :
Bela M. Trivedi, J.
1. The Civil Application No. 2 of 2018 has been filed by the applicant-Vitthalbhai Maganbhai Parmar, claiming to be the power of attorney holder of the applicants/original appellants, seeking condonation of delay of 365 days occurred in filing Misc. Civil Application No. 1 of 2018, which has been filed for restoration of Second Appeal No. 238 of 2015. The Misc. Civil Application No. 1 of 2018 has been filed by the said Vitthalbhai Maganbhai Parmar for recalling of the order dated 11.09.2017 passed by the Court in Second Appeal No. 238 of 2015, by which the Court had permitted the learned Counsel Mr. Y.N. Ravani appearing for the opponent no. 3 (Original Appellant No. 1.4) to withdraw the Second Appeal. The Civil Application seeking condonation of delay has been resisted by the opponent no. 3 Lalitbhai Jesangbhai by filing an affidavit in reply on 11.01.2019.
2. Earlier, the Court, after hearing the learned advocates for the parties on the Civil Application, had prima facie found that the present opponent no. 3-original appellant No. 1.4- Lalitbhai Jesangbhai Parmar had played mischief while withdrawing the Second Appeal, by misrepresenting before the Court that the other appellants i.e. present applicants were permitted by the Court to be transposed as the party respondents and that he was the sole appellant in the Second Appeal. The Court therefore taking a serious note of the said fact, had directed the opponent no. 3 Lalitkumar Jesangbhai Parmar vide order dated 18.10.2019 to file an affidavit explaining the entire situation observed by the Court in the said order. For ready reference, the said order dated 18.10.2019 is reproduced as under:
2. Learned Advocate Mr. Ravani has filed affidavit in reply to the Civil Application No. 2 of 2019 seeking condonation of delay. The same is taken on record.
3. It is brought to the notice of the Court by learned Advocate Mr. J.A. Adeshra for the applicants that present applicants alongwith the said Lalitbhai Jesangbhai Parmar being the legal heirs of the deceased Jesangbhai Kachrabhai Parmar, had filed the Second Appeal through the learned Advocate Mr. Maulik Nanavati of Nanavati & Co. However, the said Second Appeal was sought to be withdrawn by the appellant-Lalitbhai Jesangbhai Parmar alone surreptitiously by engaging the learned Advocate Mr. Y.N. Ravani, without obtaining any 'No Objection' from learned Advocate Mr. Nanavati of Nanavati & CO., appearing for all the appellants on record, and further by transposing the present applicants, who were original appellants Nos. 1.1 to 1.3, 1.5 and 1.6 in the Second Appeal as the respondents. He also submitted that there was no application filed seeking amendment in the cause title nor the Court had passed any order permitting Mr. Ravani to transpose the applicants as the respondents in the Second Appeal. According to him, only the amended memo of Appeal was produced under the purported signature of Ms. Jadeja, who was working with Nanavati & Co., however the said signature of Ms. Jadeja also appears to have been forged one.
4. The learned Advocate Mr. Ravani however submitted that the said transposition of the present applicants, who were the appellants alongwith Lalitbhai Jesangbhai Parmar was carried out pursuant to the permission granted by the Court v
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