C/SCA/1306/2022 ORDER DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1306 of 2022
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JAIN SWETAMBAR VISA HUMMAD CHARITABLE TRUST DHARMAM
SHALA
Versus
KAKADIYA BECHARBHAI ARJANBHAI
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Appearance:
MR ASHISH M DAGLI(2203) for the Petitioner(s) No. 1
MR RAVINDRA SHAH(1299) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/03/2023
ORAL ORDER
1. The present petition is filed challenging the order dated 24.7.2019 passed below Exh.33 in Special Civil Suit No.7 of 2017 questioning the validity of Power of Attorney and prayer for dismissal of the suit, was rejected.
2. Heard learned advocate Mr.Dagli for the petitioner and learned advocate Mr.Shah for the respondent.
3. Learned advocate Mr.Dagli for the petitioner submitted that earlier an order was passed below Exh.33 Page 1 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 by the learned Principal Senior Civil Judge, Palitana, which was very cryptic in nature and therefore Special Civil Application No.14464 of 2019 was preferred in this Court, wherein, by order dated 24.7.2019, the said order passed below Exh.33 in Special Civil Suit No.7 of 2017 was set aside and the matter was remanded back for fresh consideration.
4. Learned advocate Mr.Dagli further submitted that in view of the provisions of Sections 45A read with Section 20 of the Bombay Stamp Act, the power of attorney which is produced on record is not properly stamped as it can be considered as conveyance. He has further submitted that the learned trial Court, while deciding the application afresh by way of interim order, has not considered the submissions made at the bar by giving cogent and convincing findings in the impugned order and has only resorted to the provisions of the Section 20A of the Bombay Stamp Act and has rejected the application on erroneous grounds. He has further submitted that the learned trial Court has not properly considered the fact that if the power of attorney is required to be stamped in proper manner, then the Page 2 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 question of court fees etc. also will be required to be considered and therefore the application to dismiss the suit is filed at Exh.33 which is required to be allowed, however, the same is not done by the learned trial Court on erroneous and improper grounds. He, therefore, prayed to allow this petition.
5. Per Contra, learned advocate Mr.Shah for the respondent has strongly objected the submissions made at the bar by the learned advocate for the petitioner and has contended that the petition deserves to be dismissed as no ground is made out for interference under Article 227 of the Constitution of India. Learned advocate Mr.Shah has further submitted that these proceedings are nothing but to prolong the litigation which is pending before the learned trial Court which is at the stage of recording of evidence of the defendant and next date is fixed on 1.4.2023. He has further submitted that even on merit, if we look at the application at Exh.33, it does not disclose under which provision the application is filed. He has drawn my attention to the provisions of Section 141 of Civil Procedure Code (`CPC' for short) which should be read with Order VI Rule 14 of CPC Page 3 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 and in view of that, the application at Exh.33 and the impugned order itself is not maintainable in the eye of law and therefore he has submitted that the application which is filed by the petitioner is totally misconceived with a view to prolong the litigation and therefore he has submitted that the present petition be dismissed by imposing heavy cost.
6. In rejoinder, learned advocate Mr.Dagli submitted that while issuing notice in this matter, this Court has granted liberty by order dated 2.2.2022 to apply for adjournment and therefore the present petitioner has applied for adjournment before the learned trial Court and therefore the suit is adjourned from time to time.
7. I have considered the rival submissions at the bar and also the earlier order passed by coordinate Bench of this Court. By the earlier order passed by coordinate Bench of this Court on 12.10.2021, this Court has interfered with the impugned order passed below Exh.33 only on the ground that cryptic order is passed, therefore remanded the matter back for fresh Page 4 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 consideration and on perusal of the impugned order passed by the learned trial Court, I am of the opinion that the learned trial Court has not committed any error by considering Section 20 of the Bombay Stamp Act and that when the power of attorney is also exhibited by the learned trial Court by accepting the contention, thereafter also, by accepting the contention raised by the present respondent, in the hearing of Exh.33 application about the power of attorney being already executed. It is also noted that the amendment made in the Stamp Act cannot be considered with retrospective effect. However, the Court has rightly come to the conclusion that the application at Exh.33 is required to be dismissed solely on the ground that the application is not maintainable in view of the brief discussion in the impugned order. Moreover, while examining the totality of the circumstances and testing the contention made at the bar in the present petition by advocates for the parties, it transpires that the application impugned i.e. Exh.33 does not disclose that the application is made under which provision of law. Even assuming that the said application is filed for rejection of the plaint, then also the averments which attract the language which is required Page 5 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 under the provisions of law is not found for eg. Order VII or any other provison of law is not found in the application. The contention that Section 141 of the CPC is also helpful to the case of the respondent which should be read with provisions of Order 6 Rule 14 of the CPC, which reads as under:
"141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
2 [Explanation.-- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]"
8. Considering the said provisions and considering the tenor of the application Exh.33 and considering the order passed by the learned trial Court, I am of the opinion that the learned trial Court has not committed any error, more particularly, any serious error in passing the impugned order and the findings of the learned trial Court cannot be considered as perverse or in violation of fundamental principles of law or justice nor it can be Page 6 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023 C/SCA/1306/2022 ORDER DATED: 28/03/2023 said that exercise of jurisdiction is in nature of correctional jurisdiction to set aside the grave dereliction of duty of fragrant abuse of power.
9. In view of the above and in view of the latest judgment of the Apex Court in the case of Garment Craft V/s Prakash Chand Goel reported in (2022)4 SCC 181 reported in 2022(4) SCC 181, more particularly, paragraphs 15 and 16, no case is made out for interference under Article 227 of the Constitution of India. Accordingly, this petition is dismissed. It is expected that the learned trial Court shall proceed with the suit as expeditiously as possible.
(SANDEEP N. BHATT,J) SRILATHA Page 7 of 7 Downloaded on : Tue Mar 28 20:53:30 IST 2023