Gujarat High Court

Sureshbhai Madhavlal Dave vs State Of Gujarat on 8 May, 2025

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                            R/CR.MA/8616/2025                                           ORDER DATED: 08/05/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/CRIMINAL MISC.APPLICATION (RECALL) NO. 8616 of 2025

                                    In R/CRIMINAL MISC.APPLICATION NO. 1528 of 2020

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                                                 SURESHBHAI MADHAVLAL DAVE
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
                       MR. JAY MEHTA, APP for the Respondent(s) No. 1 - State
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 08/05/2025
                                                              ORAL ORDER

1. The present application is filed for seeking the

following reliefs:

"(A) Your LORDSHIPS may be pleased to recall the order dated 13.07.2023 passed in Special Criminal Application No. 1528 of 2020;

(B) Your Lordships may be pleased to dispense with the certified copy of FIR as the same has been provided in Cr.M.A No 1528 of 2020;

(C) Any other and further relief/s which may be deemed fit by this Hon'ble Court be granted."

2. Heard Mr. Vicky Mehta, learned advocate for the

applicant with Mr. Jay Mehta, learned APP for the

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respondent - State.

3. The matter was argued at length on earlier occasion

and today the matter is considered further. It transpires

that the present application is filed for recalling of the

order dated 13.07.2023 passed by this Court in Criminal

Misc. Application No.1528 of 2020; almost after one year

and ten months.

4. Mr. Vicky Mehta, learned advocate for the applicant

has submitted that though the applicant was served in

the main proceeding i.e. Criminal Misc. Application No.

1528 of 2020 pursuant to the notice issued by this

Court, but due to lack of proper advice, he could not appear before this Court and could not contest the

Criminal Misc. Application No. 1528 of 2020 on merits.

He has submitted that considering the nature of dispute

involved, which pertains to use of forged document in

the revenue proceedings; the interest of applicant is

jeopardized as the proceedings of Criminal Misc.

Application No.1528 of 2020 are quashed by this Court

vide order dated 13.07.2023 and, therefore, he prays to

hear the applicant by recalling the order dated

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13.07.2023 passed by this Court in Criminal Misc.

Application No.1528 of 2020 and after hearing the

applicant, appropriate order may be passed. He has

further submitted that applicant is not well-versed with

the provisions of law and also when they came to know

about the resultant effect of the impugned order, they

contacted the local lawyer and they have decided to

approach this Court and, therefore, it cannot be said

that the applicant is deliberately not pursuing the

proceedings and by filing such application and, therefore,

he has prayed that the present application may be

allowed by considering that the interest of justice will be

served if the applicant is heard by recalling of the

impugned order and after hearing the applicant, fresh order can be passed in Criminal Misc. Application No.

1528 of 2020.

5. Learned Additional Public Prosecutor Mr. Jay Mehta

has strongly opposed the submissions made at the bar

by learned advocate for the applicant and also drawn my

attention to the fact that before passing of the order, the

notice has already been served to the present applicant

even then the applicant has not chosen to contest the

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proceeding and, therefore, now after such delay of more

than one year and ten months, such prayer should not

be entertained, which amounts to encourage the attempt

made by the applicant, who misuse of process of law by

filing such application and, therefore, he has submitted

that the applicant lacks bona fides as well as even lacks

merit and as the applicant remained thoroughly negligent

in availing the opportunity at the appropriate time and,

therefore, no relief can be granted as prayed for by the

applicant.

6.1 Considering the rival submissions made at the bar

and considering the fact that the proceedings are filed by

the original applicant, who is accused in the F.I.R. C.R. No.I/1/2019 registered before the Limdi Police Station,

Surendranagar under Sections 465, 467, 468 and 120B of

the Indian Penal Code, whereby the Court has issued

notice to the original complainant with a view to give

fair opportunity; when the FIR is registered, normally

the investigating agency contests the proceeding through

the Public Prosecutor, if such proceeding for quashing of

the complaint is filed as investigating officer is having

necessary record with him. However, considering the

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nature of dispute and considering the practice prevailing

in this Court, the Court has issued notice, which is

served on the applicant at the relevant point of time.

From the record, it transpires that notice is issued in

original proceeding i.e. Criminal Misc. Application No.

1528 of 2020 on 19.02.2020, it transpires that notice is

served on the present applicant on 10.03.2020, whereby

the present applicant - Sureshbhai Madhavlal Dave has

himself received the notice. This Court has waited for

three years after service of notice before passing the

order dated 13.07.2023 passed by this Court in Criminal

Misc. Application No.1528 of 2020. The present applicant

did not care to appear in the matter, neither engaged

any counsel nor appeared himself or filed affidavit. Thereafter, after considering the arguments of learned

Additional Public Prosecutor, which is recorded in

paragraph No.6.1. to 6.3 of the impugned order and after

considering the materials available with the Court and

also after considering the relevant aspects, the Court has

passed the impugned order. Therefore, it cannot be said

that the impugned order is passed without giving any

opportunity to the present applicant. In fact, the

applicant has deliberately not appeared even after three

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years of service of the notice and then the order is

passed by this Court after considering the pros and cons

of the matter and after hearing the learned Additional

Public Prosecutor, hence, it cannot be said that any

cause is made out even for filing of such application for

recalling of the impugned order, more particularly,

considering the provisions of Section 362 of the Criminal

Procedure Code, which is pari materia of Section 403 of

Bharatiya Nagarik Suraksha Sanhita, 2023, which read

as under:

"Section 362 in The Code of Criminal Procedure, 1973:-

362. Court not to alter judgment.

- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

Section 403 in Bharatiya Nagarik Suraksha Sanhita, 2023:-

403. Court not to alter judgment.

Save as otherwise provided by this Sanhita or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

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6.2 Furthermore, this Court has also decided the

question regarding issue of recalling of order vide order

dated 02.05.2025 passed in Criminal Misc. Application

No.8571 of 2025 in Special Criminal Application No.30 of

2025.

6.3 Considering the fact that even after passing of the

impugned order, it transpires from the record that writ

is issued on 18.07.2023, and copy of writ might have

received by the present applicant probably within one

month or so. Considering that aspect also, and also

considering the totality of the conduct of the applicant,

who remained silent though the notice is served, the present application is nothing but an attempt to abuse of

the process of law.

6.4 It is relevant to refer the judgment of the Hon'ble

Apex Court in the case of Haryana Urban Development

Authority and Another vs. Jagdeep Singh reported in

(2023) 14 SCC 122, more particularly, paras 21 and 22

are relevant, which are reproduced as under:

"21. In the case in hand, the civil suit was filed on

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1.10.2003 by the Respondent challenging the demand of additional price. Judgment of this Court in Sanjay Gera's case was delivered on 22.02.2005. Despite this fact being in knowledge of the Appellants, the suit was contested and the same was decreed on 19.08.2008. The matter did not end here, appeal was preferred by the appellant before the First Appellate Court and on failure even before the High Court and thereafter before this Court. For the aforesaid reasons and wasting the time of the Courts at different levels, we deem it appropriate to burden the Appellants with cost of ₹1,00,000/- to be deposited with the Supreme Court1,00,000/- to be deposited with the Supreme Court Mediation Centre.

22. In addition, the Respondent having been dragged in unnecessary litigation upto this Court deserves to be awarded cost of ₹1,00,000/- to be deposited with the Supreme Court50,000/-. The aforesaid amount shall be recovered by the Appellants from the guilty officers/officials who opined the case to be fit for filing appeal at different levels despite being covered by judgment of this Court."

6.5 It is also fruitful to refer the judgment of the

Hon'ble Apex Court in the case of Dnyandeo Sabaji Naik

and Another vs. Pradnya Prakash Khadekar and Others

reported in (2017) 5 SCC 496, more particularly, paras

12 to 15.4 are relevant, which are reproduced as under:

"12. This case indicates a blatant abuse of the process of the Court. The petitioners not only took the benefit of an order of the High Court granting them one year's time to

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vacate the premises but obtained a further extension of a period of four months to vacate. The petitioners then filed a Review Petition before the High Court and moved another application, this time seeking an extension of five years to vacate the premises. The time of the High Court and, unfortunately, of this Court as well had to be devoted to a thoroughly frivolous proceeding. Learned counsel for the petitioners in fact sought to urge that as a result of the judgment of the City Civil Court, the petitioners have been deprived of establishing that their status as licensees fructified into a tenancy with effect from 1 February 1973. Quite apart from the fact that such a plea would not be open to the petitioners in the background of what has been observed earlier, we find even on merits that the submission requires only be stated to be rejected. We have extracted in the earlier part of this judgment the specific finding of the Trial Court based on the admissions of the predecessor-in-interest of the petitioners that the premises were granted to them on the basis of a conducting agreement. Besides this, in the earlier proceeding that was instituted in the Small Causes Court, it was found that the premises have been granted under a conducting agreement and there was no relationship of licensor and licensee. That being the position, the petitioners would not acquire status as tenants with effect from 1 February 1973, there being no licence in their favour.

13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not

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dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts

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of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.

15. We accordingly dismiss the Special Leave Petitions but while doing so, direct that:

5.1 the petitioners shall vacate the premises on or before 7 March 2017;

15.2 In case the petitioners fail to vacate the premises by the date indicated in (i) above, they shall expose themselves to civil and criminal consequences under the law;

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15.3 The petitioners shall pay all arrears for use of the premises computed at the rate fixed in the order of this Court dated 28 August 2015 within four weeks; and

15.4 The petitioners shall pay costs quantified at Rs 5 lakhs (Rupees five lakhs) to the respondents within two months."

6.6 In view of the above, this is a fit case where the

litigants, who are trying to abuse the process of law by

filing one litigation after another or by initially

deliberately avoiding the proceedings and thereafter,

coming with the plea of recalling of the order by filing

application at this stage, such unscrupulous litigants

should be discouraged by the Court by imposing

exemplary cost and, therefore, I am of the opinion that

this application is required to be dismissed by imposing

cost of Rs.50,000/- upon the present applicant. Out of

total Rs.50,000/-, Rs.25,000/- shall be deposited before the