Ghoghuba Jambha Zala vs Sherasiya Inayat Husainbhai
2023 Latest Caselaw 1818 Guj

     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

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

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.

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

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