Umaben Bhavinbhai Patel Wd/O ... vs Mamlatdar And Agriculture Land ...
2021 Latest Caselaw 1354 Guj

         C/CA/2903/2018                                      IA ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


      MISC. CIVIL APPLICATION (FOR RESTORATION) NO. 1 of 2019
                In R/CIVIL APPLICATION NO. 2903 of 2018
                                 With
      MISC. CIVIL APPLICATION (FOR RESTORATION) NO. 1 of 2019
             In F/LETTERS PATENT APPEAL NO. 207 of 2018
            In SPECIAL CIVIL APPLICATION NO. 12002 of 2001

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UMABEN BHAVINBHAI PATEL WD/O BHAVINBHAI AMBALAL PATEL Versus MAMLATDAR AND AGRICULTURE LAND TRIBUNAL VADODARA ========================================================== Appearance:

MR MIHIR THAKORE, SR. ADVOCATE WITH MR SALIL M THAKORE for the PETITIONER(s) No. MR ASIM PANDYA, SR. ADVOCATE WITH MR SP MAJMUDAR (CA No.2903/2018) and MR JITENDRA M PATEL (LPA No.207/2018) for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 29/01/2021

COMMON IA ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1 We have heard Mr. Mihir Thakore, learned Senior Advocate assisted by Mr. Salil Thakore, learned counsel for the applicants and Mr. Asim Pandya, learned Senior Advocate assisted by Mr. Sharvil Majmudar and Mr. Jitendra M. Patel, learned counsels for the respondent No.2 in these two matters.

C/CA/2903/2018 IA ORDER

2 By means of these applications the applicants have prayed for recalling the order dated 03.07.2019 passed in Civil Applications and Letters Patent Appeal whereby the Division Bench dismissed the applications and the Letters Patent Appeals for want of prosecution. The order dated 03.07.2019 reads as follows:

"Heard learned advocates for the respondents.

In this proceeding, following order was passed on 15.4.2019:

"Having gone through the office submission dated 11.04.2019 accompanied by letter dated 10.04.2019 addressed by learned counsel representing applicants stating that he is retiring from the matter, the Registry is directed to issue fresh notice to the original owner- Umaben Bhavinbhai Patel returnable on 20.06.2019."

Fresh notices were served upon the applicants in view of retirement of their advocate and thereafter, no one appeared on 20th June, 2019 and again on 27th June, 2019, there was no representation on behalf of the applicants when following order was passed:

"In both these applications, the advocate appearing on behalf of the applicants has retired and even notice issued to concerned applicants in both these applications is served, but no representation is made on

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their behalf. Though opportunity was given earlier also, no representation is made today. Hence, adjourned to 3rd July, 2019. On that day, if no one appears on behalf of the applicants in these applications, appropriate order will be passed for not prosecuting the appeals and applications."

Today once again, no one appears on behalf of the applicants. Hence, Civil Application No. 2903 of 2018 in F/Letters Patent Appeal No. 17295 of 2018 and Civil Application (For Condonation of Delay) No. 3 of 2018 in F/Letters Patent Appeal No. 207 of 2018 are dismissed for want of prosecution. Consequently, F/Letters Patent Appeal No. 17295 of 2018 and F/Letters Patent Appeal No. 207 of 2018 as well as connected civil applications are disposed of. Notice is discharged. Status-quo granted earlier in Civil Application No. 1 of 2018 in F/Letters Patent Appeal No. 207 of 2018 stands vacated".

3 A perusal of the above shows that on 15.04.2019 the learned counsel for the applicants - appellants had made a statement that he was retiring from the matters and the Registry was directed to issue fresh notice fixing on 20.06.2019. The matters were listed on 20.06.2019 and 27.06.2019 and when no one appeared, the Court passed an order that despite notice being issued no representation is made and accordingly the matters were fixed for 03.07.2019 as a last opportunity. On 03.07.2019 once again no one appeared and the order was passed.

4    The applications for recall have been filed stating




        C/CA/2903/2018                            IA ORDER

that the applicants could not make arrangements to engage another counsel on 20.06.2019, 27.06.2019 or till 03.07.2019. However, it was only thereafter that the applicants approached the earlier counsel and requested him to conduct the matters. After some correspondence or dialog with the previous counsel, the briefs were accepted, the applications were prepared and thereafter the applications were filed within time. The applicants have also stated that applicant No.1 had some serious health issues because of which also she could not make arrangements to appear on the returnable date i.e. 20.06.2019 and soon thereafter.

5 Mr. Thakore, learned Senior Advocate has submitted that sufficient cause has been shown for recalling order dated 03.07.2019 and as a settled principles of law that parties should be allowed an opportunity to thrash out the matter on merits rather than shutting it out on technicalities, submits that recall applications be allowed and the order dated 03.07.2019 be recalled.

6 On the other hand, Shri Asim Pandya, learned Senior Advocate appearing for the respondents submits that the applicants are in the habit of sitting on the fence, approaching the Court at every stage by serious delays and also allowing the matters to be closed ex parte or in their absence and then filing recall applications. He has

C/CA/2903/2018 IA ORDER

seriously objected to the recall applications being allowed, as according to him, sufficient opportunity was afforded to the applicants to appear and engage a counsel, but the applicants having not availed such opportunity, cannot be allowed to benefit of their own faults. He further submits that the very fact that the very same counsel has been engaged again, who had earlier withdrawn himself from the matters shows the conduct of the applicants being not bona fide. He has thus submitted that the applications be rejected and the order dated 03.07.2019 be maintained.

7 In rejoinder, Mr. Thakore has taken us to the rejoinder affidavit filed by the applicants in reply to the affidavit in reply of the respondents and has submitted that the earlier retirement of the counsel was after due correspondence with the attorney of the applicants, who had engaged the learned counsel.

8 Having considered the submissions, apart from the fact that the recall applications have been filed for the reasons as stated in paragraph 3, we also take notice of the fact mentioned in paragraph 4 of the applications that there is another appeal being Letters Patent Appeal No.1490 of 2017 filed by another party challenging the very same judgment of the learned Single Jude, which is already admitted and an interim order is operating, we

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feel that it would be in the interest of justice that the order dated 03.07.2019 be recalled, the applications be allowed and thereafter the matters may be proceeded. The interest of justice would be served when the matters are thrashed out on merits rather than on technicalities, the judgment of the learned Single Judge is already under challenge in another pending appeal, and therefore, we allow these two applications and recall the order dated 03.07.2019. The office to follow further action in the matter.

(VIKRAM NATH, CJ)

(BIREN VAISHNAV, J) P. SUBRAHMANYAM