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SCA/16066/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16066 of 2010
=========================================================
SANJAY
HIRALAL SHAH - Petitioner(s)
Versus
H
D F C BANK LTD - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 17/01/2011
ORAL
ORDER
1. The
petitioner-original plaintiff is before this Court being aggrieved by
the judgment and order dated 29.07.2010 passed by the 4th
Additional Senior Civil Judge, Vadodara in order below Ex. 71 in
Misc. Civil Application No. 168 of 2009 in Spl. Summary Suit No. 202
of 2001.
2. It
is the case of the petitioner that by Ex. 71 the respondent Bank
filed an application to defend on behalf of the original defendant
HDFC Bank. The trial court allowed the said application and also
held therein that the bank is entitled to defend the suit
unconditionally. Thereafter, Civil Revision Application was filed
before this court which later on came to be withdrawn. The
petitioner then filed application for review/recall of the order
passed by the trial court in order below Ex. 71 which is impugned in
the present petition. The Civil Court rejected the review/recall
application and hence the present petition is preferred.
3. Mr.
Dagli, learned advocate appearing for the petitioner has submitted
that the court below has committed a serious error of law inasmuch as
it is settled proposition of law that once any order which was
obtained from the court by suppressing material facts the court below
ought not to have rejected the application on flimsy and technical
grounds.
4. This
court has heard the learned advocates for the parties and perused the
papers on record. The court below has considered that the
application for review/recall falls under the purview of the
provisions of Order 47, Rule 4(2)(b) because no application shall be
granted on the ground of discovery of new matter or evidence which
the applicant alleges was not within his knowledge or could not be
adduced by him when the decree or order was passed or made. The
court below has also observed that so many triable issues are
involved in the matter which cannot be decided or determined without
recording evidence from both the sides. This court is in complete
agreement with the reasonings adopted by the court below.
4.1 However,
in the interest of justice, since the view taken by the court below
is tentative, it shall be appropriate if while considering the
appeal, which is subject matter before the lower court, the
petitioner raises all the contentions before the trial court. The
order impugned in the present petition is just and proper and does
not call for any interference by this court.
5. In
the above view of the matter, petition is dismissed. It shall be
open to the petitioner to argue all points at the time of hearing of
appeal by the lower court and to cross examine the witnesses to prove
his case at the time of trial. It is made clear that the trial court
shall not be influenced by the order of this court and shall consider
the evidence laid down by both the sides independently and in
accordance with law.
(K.S.
JHAVERI, J.)
Divya//
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