IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20895 of 2016 ==========================================================

DURLABHBHAI MORARBHAI CHAUHAN Versus DIPAKBHAI BHAGVANDAS CHAUHAN & 7 other(s)

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Appearance:

MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1 MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 4,6 MR MOHSIN M HAKIM(5396) for the Respondent(s) No. 7 NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,5,8 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 05/06/2023

ORAL ORDER

1. This petition is filed under Article 227 of the Constitution of India, against the order dated 04.08.2016, passed by the Principal Civil Judge, Navsari, in the title suit Pradip Chauhan Vs. Durlabh Chauhan and others (Special Civil Suit No.40 of 2015), whereby learned Trial Court rejected the application Exhs.49, 50, 51 and 52.

2. Facts and circumstances giving rise to file present petition are that; the petitioner – defendant is permanent residence of U.K. and his native place is at Navsari, State Gujarat. The plaintiff Pradip Chauhan is a son of the petitioner. The plaintiff has grievance with regard to sale of the immovable property situated at Navsari, allegedly sold by his father i.e. defendant petitioner. The plaintiff – Pradip Chauhan filed a special suit for cancellation of registered sale deed with respect to disputed property and sought various reliefs before the Civil Court. In the cause-title of the suit, it is mentioned that the summons of the suit be served through one Hasumatiben Jayantilal – respondent no.8, power of attorney holder of the defendant petitioner. The learned Trial Court at the time of admission of the suit, issued summons upon the parties. The petitioner herein served the summons through its power of attorney holder respondent no.8 who happened to be a real sister of the petitioner defendant. Upon receiving the summons, she appeared through lawyer and filed Vakalatnama for and on behalf of the defendant petitioner and also submitted a written statement Exh.33. The facts of the suit and filing of the Vakalatnama as well as written statement did not have conveyed by respondent no.8 to petitioner defendant. The power of attorney executed in favour of respondent no.8 was a limited purpose and she was authorized only mutating the name of the petitioner defendant with the Municipality, Navsari with respect to suit property and was not having power to plead and defend the suit case.

Despite of this, respondent no.2 without informing the petitioner defendant, accepted summons of the Court and filed a written statement. The petitioner came to know about filing of the suit from the purchasers of the property i.e. respondent nos.2, 3 and 4 and the facts, accepting the summons as well as filing of the written statement, by respondent no.8. Thus, the petitioner herein executed power of attorney dated 07.04.2016 before the Notary Public, London, U.K. and authorized one Sanjay Shah to act, for and on behalf of the defendant in the civil suit as well as appeared in all the Courts and further authorized to sign the written statement, counter claim, Vakalatnama, etc. Pursuant to the power given to Mr.Shah, he has filed his Vakalatnama at Exh.49 along with the written statement duly signed by him at Exh.50, with list of documents at Exh.52, inter alia stating that the earlier written statement at Exh.33 having been filed by the respondent no.8 without any authority and the act of respondent no.2 is in collusion with the plaintiff and therefore, his appearance and written statement may be taken on record and written statement earlier filed may be ordered to be strike out from the record.

3. The learned Trial Court rejected the permission to file Vakalatnama and written statement. While rejecting the application, the learned Trial Court recorded that, once the written statement having been fil