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MCA/98/2010 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 98 of 2010
In
MISC.CIVIL
APPLICATION No. 887 of 2001
In
FIRST APPEAL No. 438 of 1995
=========================================================
LALABHAI
PRAHLADBHAI - Applicant(s)
Versus
MOTIBEN
W/O PRALHADBHAI & 4 - Opponent(s)
=========================================================
Appearance
:
MR
MA PAREKH for
Applicant(s) : 1, 1.2.1, 1.2.2,1.2.3
None for Opponent(s) : 1,
1.3.2, 1.3.3,1.3.4 - 5.
MR PR NANAVATI for Opponent(s) : 1.3.1
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/01/2010
ORAL
ORDER
Heard
learned Advocate Mr. MA Parekh for applicants and learned Advocate
Mr. PR Nanavati for opponents.
By
filing this application, applicants are prayinjg for restoration of
Miscellaneous Civil Application No. 887 of 2001 filed in First
Appeal NO. 438 of 1995.
It
is necessary to note earlier order passed by this Court in First
Appeal NO. 438 of 1995 dated 18th
December, 2000. Therefore, same is quoted as under:
Ld.
Advocate Mr. Anand Yagnik has appeared for Shalin Mehta for
appellant. Mr. G.D. Bhatt appeared for respondent Nos. 2 to 5.
It
has been further stated that Mr. Y.F. Mehta was earlier appearing
for appellant.
Mr.
Anand Yagnik seeks permission to withdraw the F.A. No. 438/95.
Permission granted. F.A. No. 438/95 stands disposed of as
withdrawn with no order as to costs.
Thus,
as per aforesaid order, learned advocate Mr. Anand Yagnik had
appeared for learned advocate Mr. Shalin N. Mehta for appellant and
learned advocate Mr.Bhatt was appearing for respondent NO. 2 to 5.
As per said order, earlier, learned Advocate Mr.
Y.F. Mehta was appearing for appellant. Learned Advocate Mr.Yagnik
sought permission to withdraw said appeal which was granted and
accordingly, said first appeal no. 438 of 1995 stood disposed of by
this Court as withdrawn on 18.12.2000. Thereafter, one miscellaneous
civil application no. 887 of 2001 was filed in first appeal no. 438
of 1995 by applicants wherein this court passed following order on
24.2.2005 :
Learned
advocate Shri M.B. Gandhi appearing for the
applicants has reiterated that he has not got any instructions
from his client or his briefing advocate and, therefore, he is
unable to proceed further with the matter.
In
the circumstances, the application stands disposed of for
want of non-prosecution. Notice is discharged.
Thus,
as per said order passed by this court on 24.2.2005 in Miscellaneous
Civil Application, it was reiterated by learned Advocate Mr. MB
Gandhi for applicants that he has not got any instructions from his
client or his briefing advocate and, therefore, he is unable to
proceed further with the matter and pursuant to said statement, said
application came to be disposed for want of
prosecution. Notice was discharged. These two orders have remained
as it is. More than nine years have passed in respect of order dated
18th
December, 2000 and in respect to second order, more than four years
have gone and now present application is filed with delay of 1749
days with a prayer to condone such delay and to restore
Miscellaneous Civil Application No. 887 of 2001 in First Appeal No.
438 of 1995.
In
view of this back ground, considering delay in preferring
application to set aside order of withdrawal passed by this court on
18th
December, 2000, even miscellaneous civil application no. 887 of 2001
remained pending before this court for about four years and then
applicant is filing this application for restoration of said misc.
civil application after a delay of four years. Ultimately, advocate
Mr. Gandhi for present applicant pleaded no instructions from his
clients and therefore, said application came to be disposed of.
Thereafter, four years passed. No steps taken by applicant and,
therefore, in view of this back ground, it is very difficult for
applicant to file such restoration after such a long delay.
Therefore, because of lethargic approach of applicant, if advocate
has committed mistake or not acted in interest of applicants, as per
statement made by learned Advocate Mr.MA Parekh, then, remedy for
applicant is to approach Bar Council of Gujarat by filing
appropriate application against such advocate, if so advised.
Therefore, according to my opinion, delay of 1749 days, in such
circumstances, cannot be condoned. There is no sufficient cause
shown by applicant to satisfaction of this court and it has also not
been properly explained by applicant. No affidavit of either of
advocate, Mr.Yagnik or Mr.Gandhi is filed along with this
application. So, in absence of such material, this application
cannot be granted by this court. Accordingly, same is dismissed, as
meanwhile, some right might have been accrued in favour of
respondent which may cause great prejudice to respondents.
(H.K.
Rathod,J.)
Vyas
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