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SCA/5040/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5040 of 2010
=========================================================
ASHOKBHAI
VELJIBHAI SAVANI - Petitioner(s)
Versus
HASMUKHLAL
MOHANLAL TELWALA & 6 - Respondent(s)
=========================================================
Appearance
:
MR
SURESH M SHAH for
Petitioner(s) : 1,MRTULSHIRSAVANI for Petitioner(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 4 - 7.
MR UTKARSH SHARMA FOR MS
RENISHA R VYAS for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/01/2011
ORAL
ORDER
1. The
petitioner-original defendant no. 1 is before this Court being
aggrieved by the judgmenet and order dated 10th October
2003 passed by the 5th Joint Civil Judge, Senior Division,
Surat in Special Civil Suit No. 313 of 1997. The petitioner has also
challenged the common order passed in applications Ex. 44, 45 &
46 seeking remand order for fresh trial and evidence as the same,
according to the petitioner, was done in the absence of the
petitioner.
2. It
is the case of the petitioner that on 25.02.2010, the Court of the
3rd Additional District Judge, Surat passed common order
on three applications being Exs. 44, 45 & 46 even though the
advocate for the petitioner had filed retirement pursis in Ex. 85.
3. Mr.
Shah, learned advocate appearing for the petitioner has submitted
that despite the settled position of law that in the event of
retirement of advocate for the defendants it is necessary to issue
notice to the defendants informing retirement of their advocate and
next date fixed for hearing in the suit. In the instant case the
trial court did not give notice and the petitioner’s right to lead
evidence was closed on 08.09.2003 and thereafter arguments of the
original plaintiffs were heard on 29.09.2003 in the absence of the
petitioner and then the judgement and decree in the suit was passed
on 10.10.2003 decreeing the suit which has resulted into miscarriage
of justice.
4. This
court has heard the learned advocates for the parties and perused the
papers on record. A perusal of the affidavit-in-reply clearly brings
out the fact that the petitioner was granted almost a month’s time to
engage an advocate in response to the pursis at Ex. 85. However,
this court is of the opinion that if the petition is allowed at this
stage it shall prejudice the case of the respondents. However, in the
interest of justice it shall be appropriate if while considering the
appeal, which is subject matter before the lower appellate 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 appellate court. Rule is discharged. Interim
relief stands vacated. No costs.
(K.S.
JHAVERI, J.)
Divya//
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