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MCA/510/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 510 of 2009
In
APPEAL
FROM ORDER No. 292 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=====================================================
HARJIBHAI
KARAMBHAI DESAI THE MANAGING TRUSTEE Applicant(s)
Versus
SWAMI
ABHINATMANAND SARASWATI GURU H.S.BRAHMLIN CHINMAYANAND & 5 -
Opponent(s)
=====================================================
Appearance :
MR. SB VAKIL, LD.
SR. ADVOCATE WITH MR BM MANGUKIYA for
Applicant(s) : 1 - 2.
MR SS BELSARE for Opponent(s) : 1,
MR NM
KAPADIA for Opponent(s) : 2,
None for Opponent(s) : 3 - 4.
MR
PRASHANT G DESAI for Opponent(s) : 5,
MS PJ DAVAWALA for
Opponent(s) :
6,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/02/2010
CAV
ORDER
1. Present
application has been preferred by the applicants -original appellants
of Appeal from Order No. 292 of 2007 to restore the said Appeal from
Order No. 292 of 2007 to file, which came to be dismissed for non
prosecution by order dated 7th August, 2008 as though the
matter was adjourned on number of occasions earlier, learned advocate
appearing on behalf of the applicants was absent and since more than
one year and six months there was no relief in favour of the
applicants- original appellants.
2. Shri
SB Vakil, learned Senior Advocate has appeared with Shri BM
Mangukiya, learned advocate for the applicants-original appellants.
It is submitted by Shri Vakil, learned Senior Advocate for the
applicants that the day on which the Appeal from Order was dismissed
for non prosecution, the same was dismissed for non prosecution on
the first call itself and it is the normal practice of this Court
that in the first call the matter is kept back. It is further
submitted that even Shri Mangukiya, learned advocate for the
applicants made an arrangement and his junior was to mention before
the Court to keep the matter back as Shri Mangukiya, learned advocate
for the applicants was busy in another Court, however his junior also
did not remain present at the time when the matter was called out. It
is submitted that as one of learned advocate for the respondent was
on sick note, learned advocate for the applicants was of the opinion
that the matter would be adjourned in view of sick note of Ms.
Dawawala, learned advocate for the respondent no. 6 and therefore, he
did not remain present at the time when the matter was called out.
Therefore, it is requested to allow present Miscellaneous Civil
Application and to restore the Appeal from Order to file.
3. Shri
Vakil, learned Senior Advocate for the applicants has relied upon the
decision of the Hon’ble Supreme Court in the case of Rafiq and
another vs. Munshilal and another
reported in AIR 1981 SC 1400
in support of his submission that for the negligence and/ or default
on the part of advocate litigant should not be made to suffer. It is
submitted by Shri Vakil, learned Senior Advocate for the applicants
that, in the case of Rafiq and another (supra),
Appeal from Order was restored to file on imposing cost, which was
directed to be paid by the learned advocate for the applicants,
however in the present case there is no question of even imposing the
cost upon the advocate. Therefore, it is requested to allow present
application.
4. Application
is opposed by Shri SS Belsare, learned advocate for the respondent
no.1 and Shri NM Kapadia, learned advocate for the respondent no. 2.
It is submitted that no case is made out to restore the Appeal from
Order to file. It is submitted that as such the Appeal from Order was
adjourned at least for 28 times earlier and even the order below
Notice of Motion impugned in the said Appeal from Order was passed as
far as back in the month of February 2007 and no interim relief was
obtained by the applicants for more than one year and eight months
and the Appeal from Order came to be adjourned for more than 28 times
mostly due to non availability of the learned advocate for the
applicants and only thereafter
the Appeal from Order came to be dismissed for non prosecution. It is
submitted that when the Appeal from Order was dismissed for non
prosecution on 7.8.2008, the learned advocate for the applicants was
outside the Court Room and despite having come to know about the
dismissal of Appeal from Order for non prosecution, he even did not
care to enter the Court Room and requested to restore the Appeal from
Order on that very day. It is further submitted that even the
reasoning given by the applicants in the present application and the
submissions made by the learned Senior Advocate for the applicants
are self contradictory. It is submitted that it is stated in the
application that learned advocate for the applicant Shri Mangukiya
was actually arguing matter before another Court and at the same time
it is the case on behalf of the applicants that the advocate of the
applicant was under the bonafide belief that since the advocate for
the respondent no.6 Ms. Dawawala had filed a sick note, the matter
would be adjourned and therefore, he did not remain present. It is
submitted that both the aforesaid are self contradictory. It is
submitted that the decision relied upon by the learned advocate for
the applicants will not be of any assistance in the peculiar facts
and circumstances of the case. Therefore, it is requested to dismiss
the present application.
5. Heard
the learned advocates for the respective parties
at length. At the outset, it is required to be noted that in the
Appeal from Order the applicants herein-original appellants have
challenged the order passed below Notice of Motion passed by the
learned City Civil Court, Ahmedabad which has been passed in the
month of February, 2007 and by the said order passed below Notice of
Motion the learned Chamber Judge of the City Civil Court, Ahmedabad
has restrained the original defendants No. 1 to 4 i.e. Harjibhai
Karamsibhai Desai and one Shri Parshottambahi Pitroda from acting as
a Trustee of Vitthal Mandir Trust, Bhadra Ahmedabad and despite the
above the appellant No. 2 Vitthal Mandir Trust is represented through
said Harjibhai Karamsibhai as Managing Trustee of the Vitthal Mandir
Trust despite the injunction operative against him. Be that it may,
the facts remain that the order passed in February 2007 below Notice
of Motion has been challenged in the main Appeal from Order which is
of the year 2007. The said Appeal from Order came to be adjourned for
at least 27 times and mostly due to non availability of the learned
advocate for the applicants- original appellants. Before the matter
was notified on 7.8.2008, the Appeal from Order was required to be
adjourned on as Shri Mangukiya, learned advocate for the applicants
took time as he was not having the papers and considering the fact
that Appeal from Order is of the year 2007 and still pending for
admission hearing, this Court reluctantly granted time in the
interest of justice. Thereafter the Appeal
from Order was taken up for admission hearing on 7.8.2008 and again
the learned advocate for the applicants did not remain present and in
aforesaid facts and circumstances this Court was constrained to
dismiss the aforesaid Appeal from Order for non prosecution as
earlier the Appeal from Order was adjourned for at least for 27 times
and the Appeal from Order challenging the order below Notice of
Motion passed in February 2007 was pending for admission hearing till
7.8.2008. Despite adjourning the matter for at least 27 times when
the learned advocates for the applicants remained absent what another
order can be passed ? When everybody is talking about the delay and
arrears and the blame is upon Courts that there is a delay in the
Courts, nobody is knowing the real reason for delay and arrears in
the Court. As such considering the facts of the case on hand, the
advocate is responsible for such a delay and arrears in the Court.
Under the circumstances and in facts and circumstances of the case,
it can be said that order passed by this Court dismissing the Appeal
from Order for non prosecution after adjourning the matter at least
27 times is unreasonable and / or unwarranted.
6. Now,
so far as the contention on behalf of the applicants that it was the
first call on 7.8.2008 and therefore, on the first call the Appeal
from Order could not have been dismissed for non prosecution cannot
be accepted. There is no such hard and
fast rule and / or practice that in the first call the matter cannot
be dismissed for non prosecution, it depends upon the facts of each
case. When on earlier last occasion when reluctantly this Court
adjourned the matter as the learned advocate for the applicants
submitted that he was not having papers, it was the duty of the
advocate even to remain present even in first call on the next date
of hearing.
7. Even
the cause shown by the applicants in the application is self
contradictory. On one hand it has been submitted by learned advocate
for the applicants that Shri Mangukiya, learned advocate was busy in
another Court and therefore, he could not remain present at the time
when the matter was called out, however, on the other hand it is the
case on behalf of the applicants that as Ms. Davawala, learned
advocate for the respondent No. 6 had filed a sick note, Shri
Mangukiya, learned advocate for the applicants was under the
impression that the matter will be adjourned, therefore, he did not
remain present. Both the aforesaid are contradictory. Therefore the
applicants have not come with the clean hands and have not stated
correct facts and the cause, which disentitled the discretionary
relief.
8. Now
so far as the reliance placed upon the decision of the Hon’ble
Supreme Court in the case of Rafiq and
another(supra) on considering
the same, it appears that
the same would not be of any assistance to the applicants in the
facts and circumstances of the present case narrated hereinabove.
Every decision is on facts of the case and there is no absolute
proposition of law laid down by the Hon’ble Supreme Court in the
aforesaid case that in every case when there is a negligence on the
part of the advocate, application for restoration must be allowed.
Everything depends upon the earlier proceedings of the case and the
conduct. Under the circumstances, no case is made out to restore the
main Appeal from Order, more particularly, when interim injunction
granted by the learned City Civil Court, Ahmedabad below Notice of
Motion has been continued since February 2007 i.e. for more than
three years.
7. In
view of the above and for the reasons stated above, present
application deserves to be dismissed and is accordingly dismissed.
However, considering the fact that the suit is of the year 2004 the
learned City Civil Court, Ahmedabadd is directed to expedite the suit
subject to cooperation by all concerned. With this, present
application is dismissed.
(M.R.SHAH,
J.)
kaushik
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