Gujarat High Court
Kishorbhai Bhailalbhai Sheldiya vs Bharatji Rumalji Baraiya on 8 May, 2025
NEUTRAL CITATION
C/MCA/2430/2024 ORDER DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 2430 of 2024
In R/FIRST APPEAL NO. 2441 of 2024
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KISHORBHAI BHAILALBHAI SHELDIYA & ANR.
Versus
BHARATJI RUMALJI BARAIYA & ORS.
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Appearance:
MR SHYAM M SHAH(11348) for the Applicant(s) No. 1,2
MR PADMRAJ K JADEJA(2095) for the Opponent(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/05/2025
ORAL ORDER
1. By way of the present application the applicants
- original respondents have prayed for the following
reliefs:
"23(a) Be pleased to recall the Order dated
05.08.2024 in captioned Civil Application No.1 of
2024 in First Appeal No.2441 of 2024 and be
pleased to pass an order vacating the ad interim
relief in terms of para 9(a) of the Civil Application
granted by this Hon'ble Court. (Copy of the order
is at Annexure A1, to this petition);
(b) Pending admission, hearing and final Disposal
of the present Civil Application be pleased to stay
the further operation of the Order dated 05.08.2024
in captioned Civil Application no.1 of 2024 in First
Appeal No.2441 of 2024;
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(c) This Hon'ble Court be pleased to grant such
other and further relief/s and/or order as deemed
fit in the interest of justice.
2. Heard learned Senior Counsel Mr.Asim Pandya
for the applicants and learned Senior Counsel Mr.Mehul
Shah for the respondents.
3. It is the contention of the learned senior counsel
appearing for the applicants that by way of an order dated
01.08.2024, ad-interim relief in terms of para 9A of the
Civil Application (For Stay) was granted till final disposal
of the First Appeal. This order is requested to be recalled.
4. Learned senior counsel for the applicants
submitted that Special Civil Suit No.279 of 2022 was filed
on 29.06.2022 by the present applicants - original
plaintiffs - original respondents and Special Civil Suit
No.124 of 2022 was filed on 01.04.2022 by the present
respondents - original appellants - original defendants.
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When the suit was filed by the applicants, Notice of
Special Civil Suit No.124 of 2022 was not served upon the
present applicants and therefore in the plaint, no such
averments were made. It is submitted that the impugned
judgment and decree came to be passed in Special Civil
Suit No.279 of 2022 on 03.01.2024. Against which, the
captioned First Appeal is filed.
4.1 During the course of hearing of Civil Application
(For Stay) 1 of 2024, learned senior counsel appearing for
the present respondents made a wrong statement that the
present applicants - original plaintiffs - original
respondents have suppressed a fact of institution of Special
Civil Suit No.124 of 2022. The said statement was
considered by this Court and passed an order on
01.08.2024 staying the operation and implementation of
the judgment and decree rendered in Special Civil Suit
No.279 of 2022. Thereafter, Note for Speaking to Minutes
was filed which was granted on 05.08.2024. It is further
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submitted that at the time of hearing of the application for
stay, the then learned advocate Mr.M.T.Saiyed, who
appeared on behalf of the present applicants was not heard
on facts and the application disposed of.
4.2 It is further submitted by learned senior counsel
for the applicants that Special Civil Suit No.124 of 2022
was dismissed for default and an application under order
IX of Code of Civil Procedure was filed and the same is
pending for its adjudication. It is also submitted that the
original plaintiffs- respondents are unauthorized occupants
and have remained absent all through out the trial of
Special Civil Suit and by allowing the interim relief to
continue would cause serious prejudice to the rights of the
present applicants - original plaintiffs. Much reliance has
been placed upon the averments made in the application
for recalling the order. It is therefore submitted that an
opportunity be given to the present applicants to submit
relevant facts by recalling the order dated 05.08.2024 (Oral
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Order dated 01.08.2024).
5. Per contra, learned senior counsel for the
respondents - original appellant has placed reliance upon
the averments made in the Affidavit-in-reply dated
28.10.2024 and submitted that the then learned advocate
for the applicants- original respondents was heard before
the passing of the oral order dated 01.08.2024. Therefore,
the question of recalling of the order on the ground of
none granting of opportunity being presenting facts does
not survive.
It is submitted that the oral order is passed after
by-party hearing and therefore the applicants herein, have
an alternate remedy of praying vacating ad-interim relief.
5.1 It is further submitted by learned senior counsel
for the respondents herein that the prayers in the present
application are two fold. The applicants are seeking
recalling of the oral order and also praying for vacating
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ad-interim relief which was granted by this Court, which
is not permissible.
6. I have considered the submissions canvassed by
the learned senior counsels for the respective parties and
perused the application as well as Affidavit-in-reply dated
28.10.2024. The grievance which has been raised by
learned senior counsel for the applicants is that before
passing the oral order dated 01.08.2024 (oral order dated
05.08.2024 on note for speaking to minutes) the then
learned advocate Mr.M.T.Saiyed for the applicants herein
was not heard and the order came to be passed only on
considering the submission of suppressing the fact of
another Special Civil Suit being Special Civil Suit No.124
of 2022 filed by the present respondents-original
appellants.
7. Without expressing any view on factual aspect
which are mentioned in the application as well as in the
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Affidavit-in-reply, I am of the opinion that in the interest
of justice, an opportunity be given to the applicants to
place their case on factual aspect before the appropriate
Bench having roster of First Appeal.
8. The contention of not being given any
opportunity of being heard to the then learned advocate
Mr.M.T.Saiyed for the applicants herein is not a correct
submission. The then learned advocate Mr.M.T.Saiyed was
present and he was heard on certain factual aspects and
the oral order dated 01.08.2024 was passed thereafter. It
would be in the interest of justice and in the back ground
of the aforesaid submissions, the oral order dated
01.08.2024 is recalled and an opportunity to the applicants
herein is given to have an audience on the Civil
Application (For Stay) being Civil Application No.1 of 2024
in First Appeal No.2241 of 2024. However, it is made
clear that the oral order dated 05.08.2024 granting ad-
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interim reliefs in terms of para 9(A) of the Civil
Application till final disposal of the First Appeal to
continue till hearing of Civil Application (For Stay) No.1 of
2024 in First Appeal No.2441 of 2024 is decided afresh.
9. It is made clear that this Court has not
expressed anything on allegations and counter allegations
which are made in the application and Affidavit-in-reply
filed by the respondents herein.
10. Registry is directed to list Civil Application (For
Stay) No.1 of 2024 in First Appeal No.2441 of 2024 before
the appropriate Bench having roster of First Appeal in the
month of June, 2025.
11. In view of the aforesaid observations and
directions, the present Application is disposed of
accordingly.
(D. M. DESAI,J)
MANOJ
