Gujarat High Court
Kishorbhai Bhailalbhai Sheldiya vs Bharatji Rumalji Baraiya on 8 May, 2025
NEUTRAL CITATION
C/MCA/2430/2024 ORDER DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 2430 of 2024
In R/FIRST APPEAL NO. 2441 of 2024
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KISHORBHAI BHAILALBHAI SHELDIYA & ANR.
Versus
BHARATJI RUMALJI BARAIYA & ORS.
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Appearance:
MR SHYAM M SHAH(11348) for the Applicant(s) No. 1,2
MR PADMRAJ K JADEJA(2095) for the Opponent(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/05/2025
ORAL ORDER
1. By way of the present application the applicants
- original respondents have prayed for the following reliefs:
"23(a) Be pleased to recall the Order dated 05.08.2024 in captioned Civil Application No.1 of 2024 in First Appeal No.2441 of 2024 and be pleased to pass an order vacating the ad interim relief in terms of para 9(a) of the Civil Application granted by this Hon'ble Court. (Copy of the order is at Annexure A1, to this petition);
(b) Pending admission, hearing and final Disposal of the present Civil Application be pleased to stay the further operation of the Order dated 05.08.2024 in captioned Civil Application no.1 of 2024 in First Appeal No.2441 of 2024;Page 1 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025
NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined
(c) This Hon'ble Court be pleased to grant such other and further relief/s and/or order as deemed fit in the interest of justice.
2. Heard learned Senior Counsel Mr.Asim Pandya for the applicants and learned Senior Counsel Mr.Mehul Shah for the respondents.
3. It is the contention of the learned senior counsel appearing for the applicants that by way of an order dated 01.08.2024, ad-interim relief in terms of para 9A of the Civil Application (For Stay) was granted till final disposal of the First Appeal. This order is requested to be recalled.
4. Learned senior counsel for the applicants submitted that Special Civil Suit No.279 of 2022 was filed on 29.06.2022 by the present applicants - original plaintiffs - original respondents and Special Civil Suit No.124 of 2022 was filed on 01.04.2022 by the present respondents - original appellants - original defendants. Page 2 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025
NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined When the suit was filed by the applicants, Notice of Special Civil Suit No.124 of 2022 was not served upon the present applicants and therefore in the plaint, no such averments were made. It is submitted that the impugned judgment and decree came to be passed in Special Civil Suit No.279 of 2022 on 03.01.2024. Against which, the captioned First Appeal is filed.
4.1 During the course of hearing of Civil Application (For Stay) 1 of 2024, learned senior counsel appearing for the present respondents made a wrong statement that the present applicants - original plaintiffs - original respondents have suppressed a fact of institution of Special Civil Suit No.124 of 2022. The said statement was considered by this Court and passed an order on 01.08.2024 staying the operation and implementation of the judgment and decree rendered in Special Civil Suit No.279 of 2022. Thereafter, Note for Speaking to Minutes was filed which was granted on 05.08.2024. It is further Page 3 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025 NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined submitted that at the time of hearing of the application for stay, the then learned advocate Mr.M.T.Saiyed, who appeared on behalf of the present applicants was not heard on facts and the application disposed of. 4.2 It is further submitted by learned senior counsel for the applicants that Special Civil Suit No.124 of 2022 was dismissed for default and an application under order IX of Code of Civil Procedure was filed and the same is pending for its adjudication. It is also submitted that the original plaintiffs- respondents are unauthorized occupants and have remained absent all through out the trial of Special Civil Suit and by allowing the interim relief to continue would cause serious prejudice to the rights of the present applicants - original plaintiffs. Much reliance has been placed upon the averments made in the application for recalling the order. It is therefore submitted that an opportunity be given to the present applicants to submit relevant facts by recalling the order dated 05.08.2024 (Oral Page 4 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025 NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined Order dated 01.08.2024).
5. Per contra, learned senior counsel for the respondents - original appellant has placed reliance upon the averments made in the Affidavit-in-reply dated 28.10.2024 and submitted that the then learned advocate for the applicants- original respondents was heard before the passing of the oral order dated 01.08.2024. Therefore, the question of recalling of the order on the ground of none granting of opportunity being presenting facts does not survive.
It is submitted that the oral order is passed after by-party hearing and therefore the applicants herein, have an alternate remedy of praying vacating ad-interim relief. 5.1 It is further submitted by learned senior counsel for the respondents herein that the prayers in the present application are two fold. The applicants are seeking recalling of the oral order and also praying for vacating Page 5 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025 NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined ad-interim relief which was granted by this Court, which is not permissible.
6. I have considered the submissions canvassed by the learned senior counsels for the respective parties and perused the application as well as Affidavit-in-reply dated 28.10.2024. The grievance which has been raised by learned senior counsel for the applicants is that before passing the oral order dated 01.08.2024 (oral order dated 05.08.2024 on note for speaking to minutes) the then learned advocate Mr.M.T.Saiyed for the applicants herein was not heard and the order came to be passed only on considering the submission of suppressing the fact of another Special Civil Suit being Special Civil Suit No.124 of 2022 filed by the present respondents-original appellants.
7. Without expressing any view on factual aspect which are mentioned in the application as well as in the Page 6 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025 NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined Affidavit-in-reply, I am of the opinion that in the interest of justice, an opportunity be given to the applicants to place their case on factual aspect before the appropriate Bench having roster of First Appeal.
8. The contention of not being given any opportunity of being heard to the then learned advocate Mr.M.T.Saiyed for the applicants herein is not a correct submission. The then learned advocate Mr.M.T.Saiyed was present and he was heard on certain factual aspects and the oral order dated 01.08.2024 was passed thereafter. It would be in the interest of justice and in the back ground of the aforesaid submissions, the oral order dated 01.08.2024 is recalled and an opportunity to the applicants herein is given to have an audience on the Civil Application (For Stay) being Civil Application No.1 of 2024 in First Appeal No.2241 of 2024. However, it is made clear that the oral order dated 05.08.2024 granting ad- Page 7 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025
NEUTRAL CITATION C/MCA/2430/2024 ORDER DATED: 08/05/2025 undefined interim reliefs in terms of para 9(A) of the Civil Application till final disposal of the First Appeal to continue till hearing of Civil Application (For Stay) No.1 of 2024 in First Appeal No.2441 of 2024 is decided afresh.
9. It is made clear that this Court has not expressed anything on allegations and counter allegations which are made in the application and Affidavit-in-reply filed by the respondents herein.
10. Registry is directed to list Civil Application (For Stay) No.1 of 2024 in First Appeal No.2441 of 2024 before the appropriate Bench having roster of First Appeal in the month of June, 2025.
11. In view of the aforesaid observations and directions, the present Application is disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 8 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 05:52:00 IST 2025