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SCA/5537/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5537 of 2009
=========================================================
CHANDULAL
NANJIBHAI DAMA - Petitioner(s)
Versus
PAREKH
BROTHERS & 2 - Respondent(s)
=========================================================
Appearance :
MR
ANSHIN H DESAI for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MR
DP KINARIWALA for Respondent(s) : 1,
MR ASHISH M DAGLI for
Respondent(s) : 2,
MR PJ KANABAR for Respondent(s) :
3,
MSADITIPKANABAR for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 30/04/2010
ORAL
ORDER
The
petitioner original plaintiff of Civil Suit No.23 of 2009 is
before this Court being aggrieved by order dated 14/04/2009 passed by
the learned Principal Senior Civil Judge, Jamnagar recording
compromise in Special Civil Suit No.26 of 2009 instituted by
respondent No.1 herein against respondent No.2 herein.
2. Heard
Mr.Chhaya, learned Advocate for the petitioner, who invited attention
of the Court to an order passed in Civil Misc. Appeal No.58 of 2009
in Special Civil Suit No.26 of 2009 by the learned Principal District
Judge, Jamnagar dated 06/04/2009, paragraph No.12 of which read as
under:
During
the course of argument, advocate Mr.Bharat B Jhaveri brought to the
notice that he has also filed suit against he defendant for this very
goods. The defendant has agreed to sell goods to him, for which
Rs.15 lacs have already been paid to the defendant, and he has also
filed suit which is pending with the 2nd Additional Senior Civil
Judge, Jamnagar, and considers the present suit as a colluded one to
avoid his obligation in his favour. Applicant’s advocate argued that
the plaintiff has paid to the bank and claimed receipts, and he is
holder of the title and has every right to obtain the goods from the
Warehouse. Party of the other suit has not such right to goods. He
steps in the shoes of the owner of the goods, M/s. Somani Flour &
Foods Pvt Ltd. Therefore, the objection raised by this third party
deserves no consideration at all it being only extraneous to the
ownership. Nobody can restrain the original owner from getting the
goods from the Warehouse. These entire rival contentions, when
considered, go to reveal that it would be in the interest of justice
if both the suits are tried by the same Court. Therefore, Point NO.1
deserves to be and is answered in affirmative. (emphasis
supplied).
3. It
is shocking that though this order was passed within the knowledge of
respondents No.1 and 2 herein and it was within the knowledge of
respondent No.2 that the suit filed by the present petitioner being
Civil Suit No.23 of 2009 was adjourned for hearing on 15/04/2009, an
application was filed by respondent Nos.1 and 2 to take the case on
Board i.e. Civil Suit No.26 of 2009 on 13/04/2009 that is before the
actual date of hearing and at the back of the petitioner and without
serving a copy to the petitioner. It is further grave that on
13/04/2009 itself second compromise application was presented before
the learned Civil Court, Jamnagar without
pointing out that earlier compromise application in the same terms
dated 02/04/2009 is rejected
by another Civil Court, Jamnagar and by suppressing this fact tried
to get the compromise recorded. (emphasis supplied).
3.1 What
follows is further shocking because that reveals the bent of mind of
respondents No.1 and 2.
On 14/04/2009 a Public Holiday being Dr. Baba Saheb Ambedkar’s
Birthday, in a Lok Adalat, the compromise was got recorded at the
back of the petitioner. As the petitioner was never aware about
these two events having taken place on 13/04/2009 and 14/04/2009 and
came to know about them only on 15/04/2009, that such a fraud has
been committed by respondents No.1 and 2 inter
se
on 13/04/2009 and 14/04/2009.
4. In
the opinion of this Court, this is a fit case of ‘abuse of process of
Court for obtaining favourable order’ and of perpetrating fraud, not
only on the petitioner but also on the Court, an order is obtained.
4.1 At
this juncture, learned Advocate Mr.Kinariwala, for respondent No.1,
requested to grant sometime to convey to his client the seriousness
of the matter and to convince him that this is a fit case where he
should tender unconditional
apology on affidavit and request this Court not to pass
any further orders
in the matter.
It
is requested to keep the matter on 04/05/2010. Hence, at this
request the matter is adjourned on
04/05/2010.
(RAVI
R TRIPATHI, J.)
sompura
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