Ravindra Ratilal Acharya vs Indravadanbhai Ratilal Acharya

                                                                                 NEUTRAL CITATION




     C/MCA/1435/2023                               ORDER DATED: 22/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 1435 of 2023
                                   In
             R/SPECIAL CIVIL APPLICATION NO. 12222 of 2019

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                          RAVINDRA RATILAL ACHARYA
                                   Versus
                       INDRAVADANBHAI RATILAL ACHARYA
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Appearance:
MR HARESH J TRIVEDI(927) for the Applicant(s) No. 1,2,3,4,5,6,7
MANHARKUMAR M PARMAR(9151) for the Opponent(s) No. 1
MR AS ASTHAVADI(3698) for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 22/08/2023

                                ORAL ORDER

1. By this review application under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, the applicants - original respondents are seeking recall or review of the order dated 13.07.2023 passed by this Court in Special Civil Application No. 12222 of 2019.

2. The opponents - original petitioners herein had challenged the order dated 30.04.2019, passed below Exh. 10 in Civil Appeal No. 24 of 2018, whereby, the application for production of additional evidence under order 41 Rule 27 of the CPC came to be rejected by the Appellate Court.

NEUTRAL CITATION C/MCA/1435/2023 ORDER DATED: 22/08/2023 undefined

3. Vide order dated 13.07.2023, this Court relying on the judgment of the Apex Court delivered in Jatindersinh Vs. Mahersinh (2009 AIR SC 354), set aside the order impugned passed by the Appellate Court and directed the Appellate Court to reconsider the application Exh. 10 at the time of final hearing of the Appeal.

4. The applicants herein filed this review application to recall or review the aforesaid order, mainly on the ground that, the order was passed in the absence of their counsel Mr. H.J. Trivedi and same is against the principles of natural justice, as no any opportunity of being heard was afforded to them.

5. Mr. H.J. Trivedi, counsel for the applicants has submitted that, on the day of passing the order i.e. 13.07.2023, as per his information, the matter was adjourned to 05.12.2023 and in the cause list also, same date was reflected and thereafter, he received the order under review. Assailing the order, Mr. H.J. Trivedi, learned counsel submitted that, so far appearance of present applicants are concerned, this Court observed that, "Though served, none appears for and on behalf of the respondents." That, this observation is also contrary to the record, as since 04.09.2019, he represented the applicants herein Page 2 of 4 Downloaded on : Sun Sep 17 02:04:33 IST 2023 NEUTRAL CITATION C/MCA/1435/2023 ORDER DATED: 22/08/2023 undefined and therefore, as if the applicants were not appeared despite service of notice, the Court has passed the ex-parte order and said mistake is on the face of the record.

6. In the aforesaid contentions, Mr. Trivedi, learned counsel for the applicants submitted that the ex- parte order, has caused injustice to the applicants and substantial right of the property, has also seriously affected and therefore, the order impugned may be recalled and the applicants may be granted an opportunity to contest the petition on merits.

7. Countering the submissions, Mr. A.S. Asthavadi, learned counsel appearing for and on behalf of the opponent herein, has submitted that, the counsel for the applicants at the time of hearing of the matter was remained absent and therefore, after considering the law laid down by the Apex Court, as referred above, the matter was remanded to the trial Court to decide the same at the time of final hearing of the Appeal. Thus, therefore, there is no any mistake or error committed by the Court while passing the order. The impugned order, in no any manner, caused prejudice to the right of the applicants and when the matter was not decided on merits, the issue raised herein cannot be accepted.

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8. Having heard the learned counsel for the respective parties and contentions raised in the application for review of the order, this Court is of the view that no ground exist as mentioned in Order 47 Rule 1 of the CPC to review the order. It is factually incorrect that, the matter was heard after adjournment. Even otherwise, matter was not decided on merits and no any adverse findings being recorded against the applicants herein.

9. For the aforestated reasons, no sufficient grounds made out to entertain present review application. Accordingly, the application stands dismissed.

(ILESH J. VORA,J) P.S. JOSHI Page 4 of 4 Downloaded on : Sun Sep 17 02:04:33 IST 2023