Gujarat High Court

Jain Swetambar Visa Hummad ... vs Kakadiya Becharbhai Arjanbhai on 28 March, 2023

Bench: Sandeep N. Bhatt

      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

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

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

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

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

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

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.