Gujarat High Court
Honda Car India Limited vs Thakor Shardaben Sursangji W/P ... on 15 March, 2021
Bench: Ashokkumar C. Joshi
C/SCA/4618/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4618 of 2021
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HONDA CAR INDIA LIMITED
Versus
THAKOR SHARDABEN SURSANGJI W/P THAKOR ANUPJI RAMAJI
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Appearance:
SHRI MIHIR JOSHI, SENIOR ADVOCATE for M/S WADIAGHANDY AND
CO(5679) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/03/2021
ORAL ORDER
1. Heard learned Senior Advocate Shri Mihir Joshi for M/s Wadia Ghandy
& Co. for the petitioner at length through video conference.
2. Learned Senior Advocate Shri Mihir Joshi has drawn the attention of
this Court to the order dated 16.9.2020 passed by the coordinate bench in
Special Civil Application No. 11063 of 2020 in case of Honda Cars India
Limited v. Balaji Sursangji Thakore and submitted that the impugned judgment
and decree passed by the learned Trial Court is ex facie erroneous and without
application of mind and is therefore bad in law, and there is an abuse of process
of law and the issue of limitation is also not framed. Further, the Suit is filed
by Shardaben and Baajiben Thakor (R.C.S. No. 104/2016) (Old No. 82/2013)
wherein present petitioners were not pleaded as defendants.
The Petitioner being the bonafide purchaser, owner and possessor of
subject land is severely affected by the impugned judgment and decree,
especially considering the fact that as per the impugned judgment and decree,
the defendants have not remained present to participate in the proceedings
before the Hon'ble Trial Court.
C/SCA/4618/2021 ORDER
3. Learned Senior Advocate Shri Mihir Joshi has also drawn the attention
of this Court to the common order passed by the coordinate bench in Special
Civil Application No. 18466 of 2019 with 20405 of 2019 wherein the Hon'ble
Division Bench has observed that granting of leave to appeal is discretionary
and is not a matter of right. Leave by itself is not a remedy. In such
circumstances, many other aspects of the matter should be looked into by the
court before declining to entertain the application under Article 227 of the
Constitution on the ground that remedy is to file appeal after seeking leave of
the court.
Learned Senior Advocate Shri Mihir Joshi has also submitted that, in the
present case, the Original Plaintiff has earlier filed Suit and the same decided
ex parte and subsequently they have joined as co-plaintiff.
Learned Senior Advocate Shri Mihir Joshi has heavily placed reliance
on the judgment and order of the Hon'ble Division Bench dated 5.3.2021 in
case of KKR India Financial Services Limited v. Axis Bank Limited along with
the judgment of the Hon'ble Supreme Court in case of Virudhunagar Hindu
Nadargal Dharma Paribalana Sabai & Ors. v. Tuticorin Educational Society
and Ors. [Civil Appeal No. 776 of 2019 decided on 3rd October 2019].
The issue therefore requires consideration. Hence, issue Notice to the
Respondents returnable on 9.6.2021.
Ad interim relief inter terms of paragraph 29(C) is granted till then.
(A. C. JOSHI,J)
J.N.W
