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MCA/2980/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 2980 of 2010
In
MISC.CIVIL
APPLICATION No. 2484 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1195 of 2007
=========================================
DILIPBHAI
PUMACHAND SHAH - Applicant(s)
Versus
STATE
OF GUJARAT & 4 - Opponent(s)
=========================================
Appearance :
MR
MUKUND M DESAI for Applicant(s) : 1,
None for Opponent(s) : 1 -
5.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 22/12/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
By
filing instant Misc. Civil Application, the Applicant has prayed to
recall the order dated 14.10.2010 rendered in Misc. Civil
Application No. 2484 of 2010 in Special Civil Application No. 1195
of 2007 by this Court, by which the said Misc. Civil Application has
been dismissed for default as Mr. Mukund M. Desai, learned Advocate,
who has entered his appearance has elected not to remain present
before the Court when the matter was called out. It is therefore
prayed to restore the said Misc. Civil Application to its original
number on the grounds stated in the application.
It
is stated in the Application that Mr. Mukund M. Desai, learned
Advocate who has filed his appearance on behalf of the Applicant,
has filed sick note on 14.10.2010, and his colleague who is looking
after the matter was not available on that day, and the sick note,
which was filed by him was not mentioned before the Court, and
because of his sick note, he could not remain present before the
Court. The Applicant sincerely regrets and tenders his apology for
the same. Lastly, It is also pleaded that the applicant has a good
prima facie case and balance of convenience also lies in his
favour. It is therefore prayed for the relief to which the
reference is made in earlier paragraph of this order.
Mr.
Mukund M. Desai, learned Advocate has submitted that as the Code
Number of the Advocate was not mentioned on the sick note,
therefore, the registry has not circulated the sick note before the
Court and therefore the matter has been dismissed for default. It
is therefore humbly submitted by him that through inadvertent
mistake his Clerk has not mentioned the Code Number of the Advocate
on the sick note. He therefore urged that the bonafide mistake on
part of the Clerk of the Advocate may be pardoned and on account of
his mistake, litigant should not suffer. He, therefore urged to
recall the order dated 14.10.2010 and restore the matter to its
original file.
Having
considered the submissions advanced by Mr. Mukund M. Desai, learned
Advocate for the Applicant and on perusal of the averments made in
the application, according to us, bonafide mistake on part of the
Advocate in not mentioning the Code of the Advocate on the sick
note, litigant should not suffer, and therefore, instant Application
deserves to be allowed by granting the prayer made therein.
For
the foregoing reasons, the Application succeeds and accordingly it
is allowed. Resultantly, the order dated 14.10.2010 rendered in
above numbered Misc. Civil Application is hereby recalled, and
consequently, the above numbered Misc. Civil Application is restored
to its original file.
Registry
is directed to list the above numbered Misc. Civil Application for
admission hearing before the appropriate Court taking up Contempt
matters as per the present roster.
(A.M.Kapadia,J)
(J.C.Upadhyaya,J)
Jayanti*
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