C/CA/229/2023 ORDER DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 229 of 2023
In R/LETTERS PATENT APPEAL NO. 205 of 2023
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GHOGHUBA JAMBHA ZALA
Versus
SHERASIYA INAYAT HUSAINBHAI
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Appearance:
MR VC VAGHELA(1720) for the Applicant(s) No. 1,2,3,4,5
for the Respondent(s) No. 7,8,9
MR UTKARSH SHARMA, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 6
MR BHARAT T RAO(697) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE
SONIA GOKANI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/02/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI)
1. This is an application seeking leave to appeal by preferring the Letters Patent Appeal challenging the order passed by the learned Single Judge on 15.02.2023 in Special Civil Application No. 2233 of 2023.
2. The appellants are contesting the election of Vakaner Taluka Kharid Vechan Sahakari Sangh Limited. The nominations of the appellants have been accepted by the Page 1 of 5 Downloaded on : Tue Feb 21 21:15:04 IST 2023 C/CA/229/2023 ORDER DATED: 21/02/2023 Election Officer and the appellant nos. 1 to 3 have been declared elected uncontested. The elections of the appellant nos. 4 and 5 is to be held on 22.02.2023.
2.1. By way of present application the appellants beg to challenge the order dated 15.02.2023 passed in Special Civil Application No. 2233 of 2023.
2.2. The Special Civil Application No. 2233 of 2023 came to be preferred challenging the order of delimitation of the constituency passed by the Election Officer on 06.02.2023. The learned Single Judge allowed the Special Civil Application and ordered to hold the fresh election as per the delimitation carried out on 19.01.2023.
2.3. It is averred that the uncontested election of the appellant nos. 1 to 3 get set aside by the said order and the election process also has be disrupted by the order of the learned Single Judge, therefore, the appellants seek to challenge the order passed in the Special Civil Application No. 2233 of 2023 and hence, this application with the following prayers:-
"(A) Your Lordships may be pleased to admit and Page 2 of 5 Downloaded on : Tue Feb 21 21:15:04 IST 2023 C/CA/229/2023 ORDER DATED: 21/02/2023 allow the present application;
(B) Your Lordships may be pleased to grant leave to the applicants to challenge order dated 15.02.2023 passed in Special Civil Application No. 2233 of 2023 to challenge by way of this Letters Patent Appeal. (C) Your Lordships may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things."
3. We have heard extensively learned advocate Mr. V.C.Vaghela appearing for the applicants, learned advocate Mr. Bharat Rao appearing for the Caveators and learned Assistant Government Pleader Mr. Utkarsh Sharma appearing for the respondent - State Authority on an advance copy.
4. We could notice that the petition had been preferred on 07.02.2023, the process continued and the matter was fixed on 14.02.2023. It was heard on 14.02.2023 and 15.02.2023 and the judgment came to be delivered on 15.02.2023. During the pendency of this, the appellant nos. 1 to 3 were elected uncontested on 13.02.2023. They were not impleaded the party respondents in the Special Civil Application. Page 3 of 5 Downloaded on : Tue Feb 21 21:15:04 IST 2023
C/CA/229/2023 ORDER DATED: 21/02/2023 4.1. It is contended before us that the maxim "Pendente lite nihil innovetur" would apply. According to the Law Lexicon it means "during a litigation nothing new should be introduced. During a litigation no change in the position of things, or of parties, can be made." This surely would apply to the pending petition, however, any change if not brought to the notice of the Court, could not have been recognized by the Court (Learned Single Judge) nor was the Court required to take note of the same on its own.
4.2. Considering the fact that it was a process which had already continued and by efflux of time, those three who are before this Court were declared uncontested, this decision of Mahendrabhai Chanabhai Kandoliya vs. Vakatar Bhagvanbhai Devabhai and Others [2011(3) G.L.H.120] since given in a different set of circumstances, cannot come to the rescue of respondents and in the way of this Court permitting the leave to prefer appeal on this ground. Moreover, the interpretation made by the learned Single Judge of Rule 3(A) of the Gujarat Specified Cooperative Societies (Election to Committees) Rules, 1982 ('the Rules' hereinafter) relying on the decision of Page 4 of 5 Downloaded on : Tue Feb 21 21:15:04 IST 2023 C/CA/229/2023 ORDER DATED: 21/02/2023 the Apex Court in case of Rajkot District Cooperative Bank Limited vs. State of Gujarat and Others [2015 (13) SCC 401] would also require consideration.
5. Therefore, we are of the opinion that the leave sought for, shall need to be granted for preferring the Letters Patent Appeal.
6. The present application is accordingly allowed. Direct service today is permitted.
(SONIA GOKANI,CJ) (SANDEEP N. BHATT,J) Bhoomi Page 5 of 5 Downloaded on : Tue Feb 21 21:15:04 IST 2023