Gujarat High Court
Jesangbhai Kachrabhai Parmar-Decd. vs Nanjibhai Sagrambhai Chaudhary on 14 February, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SA/238/2015 CAV IA JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2018
In R/SECOND APPEAL NO. 238 of 2015
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2018
In R/SECOND APPEAL NO. 238 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI SD/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the YES judgment ?
4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== GANGABEN JESANGBHAI PARMAR Versus NANJIBHAI SAGRAMBHAI CHAUDHARY ========================================================== Appearance:
MR JA ADESHRA for the Applicants NANAVATI & CO. for the Appellants MR ANKIT SHAH for the Opponent no.2 MR YN RAVANI for the Opponent no.3 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 14/02/2020 CAV IA JUDGMENT 1 The Civil Application No.2 of 2018 has been filed by the applicant Vitthalbhai Maganbhai Parmar, claiming to be the power of attorney holder of the applicants/ original appellants, Page 1 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT seeking condonation of delay of 365 days occurred in filing Misc. Civil Application No.1 of 2018, which has been filed for restoration of Second Appeal No.238 of 2015. The Misc. Civil Application No.1 of 2018 has been filed by the said Vitthalbhai Maganbhai Parmar for recalling of the order dated 11.09.2017 passed by the Court in Second Appeal No.238 of 2015, by which the Court had permitted the learned Counsel Mr.Y.N.Ravani appearing for the opponent no.3 (Original Appellant No.1.4) to withdraw the Second Appeal. The Civil Application seeking condonation of delay has been resisted by the opponent no.3 Lalitbhai Jesangbhai by filing an affidavit in reply on 11.01.2019.
2 Earlier, the Court, after hearing the learned advocates for the parties on the Civil Application, had prima facie found that the present opponent no.3original appellant No.1.4 Lalitbhai Jesangbhai Parmar had played mischief while withdrawing the Second Appeal, by misrepresenting before the Court that the other appellants i.e. present applicants were permitted by the Court to be transposed as the party respondents and that he was the sole appellant in the Second Appeal. The Court therefore taking a serious note of the said fact, had directed the opponent no.3 Lalitkumar Jesangbhai Parmar vide order dated 18.10.2019 to file an affidavit explaining the entire situation observed by the Court in the said Page 2 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT order. For ready reference, the said order dated 18.10.2019 is reproduced as under:
"1. The Civil Application No.2 of 2018 has been filed by the five applicants, who are the legal heirs of deceased Jesangbhai Kachrabhai Parmar, seeking condonation of delay of 365 days occurred in filing Misc. Civil Application No.1 of 2018 seeking review of the order dated 11.09.2017 passed by the Court in Second Appeal No.238 of 2015. By the said order dated 11.09.2017, the Court had permitted the learned Advocate Mr.Y.N.Ravani for the appellantLaitbhai Jesangbhai Parmar to withdraw the Second Appeal in view of the withdrawal purshish filed by the said appellant Lalitbhai Jesangbhai Parmar, one of the legal heirs of the deceased Jesangbhai Kachrabhai Parmar.
2. Learned Advocate Mr.Ravani has filed affidavit in reply to the Civil Application No.2 of 2019 seeking condonation of delay. The same is taken on record.
3. It is brought to the notice of the Court by learned Advocate Mr.J.A.Adeshra for the applicants that present applicants alongwith the said Lalitbhai Jesangbhai Parmar being the legal heirs of the deceased Jesangbhai Kachrabhai Parmar, had filed the Second Appeal through the learned Advocate Mr.Maulik Nanavati of Nanavati & Co. However, the said Second Appeal was sought to be withdrawn by the appellantLalitbhai Jesangbhai Parmar alone surreptitiously by engaging the learned Advocate Mr.Y.N.Ravani, without obtaining any 'No Objection' from learned Advocate Mr.Nanavati of Nanavati & CO., appearing for all the Page 3 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT appellants on record, and further by transposing the present applicants, who were original appellants Nos.1.1 to 1.3, 1.5 and 1.6 in the Second Appeal as the respondents. He also submitted that there was no application filed seeking amendment in the cause title nor the Court had passed any order permitting Mr.Ravani to transpose the applicants as the respondents in the Second Appeal. According to him, only the amended memo of Appeal was produced under the purported signature of Ms.Jadeja, who was working with Nanavati & Co., however the said signature of Ms. Jadeja also appears to have been forged one.
4. The learned Advocate Mr.Ravani however submitted that the said transposition of the present applicants, who were the appellants alongwith Lalitbhai Jesangbhai Parmar was carried out pursuant to the permission granted by the Court vide order dated 07.06.2016. According to him, even the note for draft amendment alongwith amended memo of parties was filed with the signature of Ms.Jadeja, who was working with Nanavati & Co. Of course, Mr.Ravani submits that he had not obtained any 'No Objection' from learned Advocate Mr.Maulik Nanavati for Nanavati and Co., before filing his Vakalatnama for the appellantLalitbhai Jesangbhai Parmar and had not informed him about the transposition of other appellants as the respondents and about the withdrawal of the Second Appeal.
5. Considering the submissions made by the learned Advocates for the parties and the record of the Second Appeal as well as all other proceedings filed in the Second Appeal, prima facie it transpires that the appellant Page 4 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT Lalitbhai Jesangbhai Parmar had not filed any application seeking amendment in the cause title of the Second Appeal for transposing the present applicants who were also appellants as the party respondents therein, and only an amended memo was submitted under the purported signature of Ms.Jadeja, who at the relevant time was working with Nanavati & CO. There is no draft amendment or order of the Court found in the record of the Second Appeal permitting the said Lalitbhai to transpose the other appellants i.e. present applicants as the respondents in the Second Appeal. It also appears that Mr.Ravani appearing for the said appellantLalitbhai had filed his Vakalatnama without obtaining 'No Objection' form the learned Advocate Mr.Nanavati who was appearing for all the appellants in the Second Appeal, and had also not informed Mr.Nanavati about the transposition of the other appellants as the respondents before withdrawing the Second Appeal. It further appears that the signature of learned Advocate Ms.Jadeja appearing on the amended memo of Appeal also does not tally with her other signatures appearing on the original memo and Vakalatnama filed by her. The order dated 07.06.2016 relied upon by Mr.Ravani only pertains to leave to amend, which appears to have been granted for carrying out amendment in the addresses of the concerned appellants in the cause title of the Appeal memo. In absence of any such application seeking amendment for transposition, or any order thereon, Mr.Ravani appearing for the said Lalitbhai Jesangbhai Parmar could not have and should not have filed the amended memo of the cause title, much less withdrawn the appeal behind the Page 5 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT back of the other appellants.
6. Under the circumstances, the Court is of the prima facie opinion that the appellant Lalitbhai Jesangbhai Parmar had played mischief while withdrawing the Second Appeal by making a show of transposition of the other appellants i.e. the present applicants as the party respondents. The Court taking serious note of the facts which have emerged from the record, directs that the said appellantLalitbhai Jesangbhai Parmar shall file an affidavit explaining the entire situation observed by the Court hereinabove. Let, learned Advocate Ms.Jadeja as well as learned Advocate Mr.Maulik Nanavati for Nanavati & CO. also remain present for the verification of the signature of Ms.Jadeja appearing on the amended memo of appeal, on the next date of hearing.
Put up on 25th October, 2019 in first five matters."
3. In view of the said order, the said opponent no.3Lalitbhai has filed an affidavit on 25.10.2019. The said Lalitbhai has also subsequently filed an additional affidavit on 28.11.2019.
4. The short facts giving rise to the present proceedings may be stated as under:
(i) One Jesangbhai Kachrabhai Parmar had filed a suit being Regular Civil Suit No.92 of 2015 (Old No.165/2001) in the Court of Civil Judge, Senior Division, Mehsana, challenging the saledeed dated 14.09.2000 executed in Page 6 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT respect of the land in question, by one Chaudhary Nanjibhai Sagrambhai on the basis of his allegedly forged power of attorney, in favour of Sureshbhai Hirabhai Chaudhary, opponent no.2 herein (original defendant no.2 in the suit). The said Jesangbhai expired on 31.12.2006 during the pendency of the suit and therefore his heirs and legal representatives i.e. the applicants and Lalitbhai Jesangbhai Parmar Opponent No.3 in the present application, were brought on record of the suit proceedings. The said suit came to be dismissed vide judgment and order dated 12.06.2008 passed by the 7th Additional Civil Judge at Mehsana.
(ii) The said heirs and legal representatives of the deceased Jesangbhai Parmar therefore had preferred an appeal being Regular Civil Appeal No.77 of 2008 against the said judgment and decree passed in the Suit, before the Court of 4th Additional District Judge, Mehsana, who dismissed the said Appeal vide the judgment and decree dated 23.07.2015. Being aggrieved by the said judgment and decree passed by the Appellate Court, the said heirs and legal representatives of the deceased Jesangbhai through the power of attorney holder Vitthalbhai Parmar had preferred the Appeal being Second Appeal No.238 of 2015.
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(iii)It appears from the record that at the time of filing of the said Second Appeal, Vakalatnana of the advocate Ms.Jadeja of M/s. Nanavati & Co., was filed signed by Vitthalbhai Maganbhai Parmar as the power of attorney holder of Lalitbhai Jesangbhai Parmar. The said Second Appeal thereafter was pending for removal of office objections, however the said objections having not been removed within the stipulated time fixed by the Court, it came to be dismissed for non removal of office objections on 30.10.2015.
(iv) The Misc. Civil Application No.894 of 2016 alongwith an application for condonation of delay therefore came to be filed in Second Appeal No.238 of 2015 with the affidavit of the said Vitthalbhai Maganbhai Parmar on behalf of the applicants/ appellants as their constituted power of attorney holder. The said Misc. Civil Application(for restoration) No.894 of 2016 came to be allowed and the Second Appeal No.238 of 2013 came to be restored on file to its original status as per the order passed by the Coordinate Bench on 09.03.2016.
(v) On 21.04.2016, the Court admitted the Second Appeal and directed the parties to maintain status quo, while issuing the notices to the other side in the Civil Application being Page 8 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT No.11614 of 2015, making it returnable on 07.06.2016. The Court (Coram: Z.K.Saiyed, J.) on 07.06.2016 passed the following order:
"Leave to amend.
Issue fresh Notice returnable on 05.07.2016."
(vi) It appears that pursuant to the said order dated 07.06.2016 passed by the Court granting leave to amend, new addresses of the appellant Nos.1.2, 1.3, 1.4 and 1.5 were supplied and the cause titles of the Second Appeal No.238 of 2015 and of the Civil Application No.11614 of 2015 were amended accordingly by stating that the amendment was carried out as per the order of the Court dated 07.06.2016.
(vii) On 11.09.2017, learned Advocate Mr.Y.N.Ravani sought permission of the Court to withdraw the Second Appeal by submitting an undated withdrawal purshish signed by the opponent no.3Lalitbhai Jesangbhai Parmar (who was the Appellant No.1.4 in the Appeal). It was stated in the said purshish by the said Lalitbhai Parmar that the Second Appeal was amended, changing the cause title by keeping him i.e. Lalitbhai Parmar as the sole appellant and such amendment was granted by the Court. The Court relying upon the said purshish filed by the said Lalitbhai through the learned advocate Mr.Y.N.Ravani, permitted Page 9 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT Mr.Ravani to withdraw the Second Appeal vide order dated 11.09.2017.
(viii) Since, learned Advocate Mr.Maulik Nanavati for M/s.Nanavati & Co. who was originally appearing for all the appellants, was unaware about the withdrawal of the Second Appeal, he wrote a letter to the Registrar, High Court of Gujarat to the effect that it had come to his notice that on 11.09.2017, the Second Appeal was disposed of as withdrawn and that on the said date, he had not appeared in the matter and the matter was withdrawn without taking 'No Objection' from him/his firm and therefore, the matter be investigated. Subsequently, the learned Advocate Mr.J.A.Adeshra filed his Vakalatnama on behalf of the power of attorney holder Mr.Vitthalbhai Parmar and filed this Misc. Civil Application No.1 of 2018 for review of the order dated 11.09.2017 alongwith the Civil Application No.2 of 2018, seeking condonation of delay.
5. The Civil Application No.2 of 2018 filed in Misc. Civil Application No.1 of 2018 has been resisted by the said Lalitbhai Parmar opponent no.3 by filing an affidavit in reply on 08.01.2019 inter alia contending that the application at the instance of power of attorney holder Vitthalbhai Parmar was not maintainable.
Page 10 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020C/SA/238/2015 CAV IA JUDGMENT As stated in the affidavit, the draft amendment was granted by the Court and therefore, the amended memo of Second Appeal was submitted. He has further stated that family members had decided not to continue the proceedings and therefore the power of attorney executed in favour of Vitthalbhai Parmar was cancelled by giving a public notice on 21.06.2017. He had engaged another advocate in his personal capacity and filed purshish dated 19.02.2017 for withdrawal of appeal. He has also stated that since the power of attorney was discontinued and the notice given thereof was produced before the Registry of the High Court, the Vakalatnama of the new advocate (Mr.Y.N.Ravani) was accepted by the Department.
6. As stated hereinabove, the Court having passed a detailed order on 18.10.2019, the said Lalitbhaiopponent no.3 herein has filed another affidavit on 22.10.2019, changing his earlier version. While stating the chronology of events, he has stated in the said affidavit that on 07.06.2016, a draft amendment was filed seeking other appellants to be transposed as the respondents, and keeping only Lalitbhai Jesangbhai through power of attorney holder as the sole appellant, and that on 08.06.2016, the amendment was allowed by the Court (Coram:
Z.K.Saiyed, J.), and that the amendment was carried out and the cause title was supplied to Page 11 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT the High Court. It is further stated that the deponent had approached Mr.Ravani on 19.07.2017 to engage him alongwith the details i.e. a notice published in the newspaper for cancellation of power of attorney. Of course, the deponent has categorically admitted that the 'No Objection' from the earlier advocate was not obtained and then on 11.09.2017, the Second Appeal was withdrawn by filing Vakalatnama of Mr.Ravani with the signature of the deponent.
7. The opponent no.3Laliltbhai thereafter filed another additional affidavit on 28.11.2019 taking absolutely new stand stating inter alia that after obtaining the certified copies of the documents, it was found that the Second Appeal was initially dismissed for nonremoval of office objections and thereafter an application for restoration alongwith an application for condonation of delay was filed. Since, the applicant Viththalbhai Parmar could not obtain the authority letter of all the heirs of the deceased plaintiff (Jesangbhai Parmar), he had requested to permit the transposition of such heirs as defendants. It is further stated that later on, as per the office checklist, the office objections were removed on 26.11.2015 and as per the note dated 13.04.2016, the draft amendment was filed and fresh title names were supplied. It is further stated that on 11.09.2017, when the Second Appeal was Page 12 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT withdrawn, the name of learned Advocate M/s.Nanavati & Co., was mentioned in the cause list and therefore, it could not be said that without the knowledge of the parties the matter was withdrawn. The letter written by M/s.Nanavati & Co., did not mention any further details about the irregularities and the said letter was based on the incorrect facts. The said letter of M/s. Nanavati & Co., was received by the department of the High Court on 11.04.2018 and therefore, the applicants had the knowledge about the withdrawal of the Second Appeal on 11.04.2018, however the Civil Application was filed on 11.10.2018 i.e. after a period of six months. According to the opponent no.3, the delay being not unintentional, it should not be condoned nor the Misc. Civil Application for restoration of Second Appeal should be allowed.
8. From the aforesaid three affidavits filed by the opponent no.3 Lalitbhai, it clearly emerges that he had filed the same changing his versions from time to time to suit his purpose and had taken absolutely inconsistent stands in the affidavits incorporating incorrect facts without verifying the record. The versions stated by him are falsified from the record of the Second Appeal and the applications filed therein as discernible from the following facts:
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(i) In the affidavitinreply filed by the
opponent no.3 resisting the application
filed by the applicants seeking condonation of delay, it was stated that the draft amendment was granted by the Court and therefore, amended memo of Second Appeal was submitted, whereas in the second affidavit filed by him on 22.10.2019, he has stated that on 07.06.2016, the draft amendment was filed seeking other appellants to be transposed as the respondents and only Lalitbhai Jesangbhai Parmar through power of attorney holder was kept as the sole appellant and that the said amendment was allowed by the Court (Coram: Z.K.Saiyed, J) on 08.06.2016, and that the amendment was carried out and the cause title was supplied to the Court. In the third affidavit filed by him on 28.11.2019, he has stated that Second Appeal was dismissed for nonremoval of office objections, and application for restoration was filed by the applicant Viththalbhai Parmar, however, since the said applicant could not obtain the authority letters of all the heirs of the deceased Jesangbhai Parmar, the applicant had requested in the said application for restoration to permit the transposition of other heirs as the defendants, and that as per the note dated 13.04.2016 the draft Page 14 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT amendment was filed and fresh title names were supplied.
(ii) All these statements made by the opponent no.3 Lalitbhai in his three affidavits have been found to be contrary to the records of the Second Appeal. There was neither any application seeking amendment for transposition of other appellants as the respondents made, nor such amendment was ever granted by the Court permitting such transposition much less on 08.06.2016. There is no such order dated 08.06.2016 passed by the Court (Coram:Z.K.Saiyed, J.), permitting such amendment, as stated by him in the affidavit, on the contrary, an order appears to have been passed by the Court (Coram:
Z.K.Saiyed, J.) on 07.06.2016, which permitted leave to amend the addresses of the appellants, which were accordingly corrected with red inkpen in the cause title with an endorsement that "The amendment was carried out as per the order of the Court dated 07.06.2016."
(iii) So far as the third affidavit filed by the opponent no.3 is concerned, it may be noted that the applicant Viththalbhai Parmar had filed the application being Misc. Civil Application No.894 of 2016 for restoration of Second Appeal on behalf of the Page 15 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT appellants, who were the legal heirs of deceased Jesangbhai. It was stated in the said application that "deponent had informed the Registry about inability to obtain the authority letter of all the heirs of the deceasedplaintiff and requested to permit their transposition as defendants, and that the applicants were under the bonafide impression that the same shall be allowed and the appeal shall be listed by the Registry before the Court for admission hearing in due course."
(iv) It may be noted that though the said Misc.
Civil Application was allowed and the Second Appeal was restored on file as per the order dated 09.03.2016, no such permission for transposition of other appellants as the party respondents, at the instance of Lalitkumar Jesangbhai, was granted by the Court, nor such amendment was ever carried out in the original cause title of the Second Appeal. Despite the said facts, it appears that a copy of amended memo of parties was surreptitiously placed on record and the Registry appears to have made an endorsement on 13.04.2016, on the backside of the Checklist dated 07.10.2015 that "Draft amendment filed and fresh titles with names supplied. O.O. removed."
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(v) It is also pertinent to note that if the amended memo showing other appellants as the respondents in the cause title of the Second Appeal was furnished on 13.04.2016, there was no need to seek leave to amend the cause title on 07.06.2016 for transposing the other appellants as the party respondents. As stated earlier, no such amendment was sought and no such amendment was granted by the Court permitting the opponent no.3 (appellant no.1.4) to transpose other appellants as the party respondents.
(vi)Thus, in absence of any order from the Court permitting amendment in the cause title of the Second Appeal, the opponent no.3 could not have sought permission of the Court for withdrawal of the Second Appeal, making misrepresentation by filing the purshish before the Court to the effect that the Second Appeal was amended by changing the cause title by keeping the present appellant Lalitbhai Parmar as the sole appellant, and that such amendment was granted by the Court. Such purshish filed by the opponent no.3 posing himself to be the sole appellant and seeking permission to withdraw the Second Appeal through his advocate Mr.Y.N.Ravani, was not only a misrepresentation before the Court, making the Court to believe that he was the sole Page 17 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT appellant in view of the amendment granted by the Court, but was also an act of fraud committed on Court and on the other appellants.
(vii) It is pertinent to note that so far as filing of Vakalatnama of Mr.Y.N.Ravani is concerned, it was stated by the opponent no.3 Lalitbhai in his first affidavitin reply filed on 08.01.2019 that he had cancelled the power of attorney of Vitthalbhai by giving public notice on 21.06.2017 and had engaged another advocate in his personal capacity, and had filed purshish dated 19.02.2017 for withdrawal of the Second Appeal. It was further stated in the said affidavit that since the power of attorney was discontinued, the Registry of the High Court had accepted the Vakalatnama of new advocate. In the second affidavit filed by him on 22.10.2019, while admitting that 'No Objection' from earlier advocate was not obtained by him, he has stated that on 11.09.2017, the Second Appeal was withdrawn by filing Vakalatnama of Mr.Y.N.Ravani. In the third affidavit filed on 28.11.2019, he has stated that on 11.09.2017 when the Second Appeal was withdrawn, the name of learned Advocate M/s. Nanavati & Co. was appearing in the cause list and therefore, it could not be said Page 18 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT that without the knowledge of the parties, the matter was withdrawn.
(viii) Such a dishonest stand taken by the opponent no.3 in the affidavits filed by him deserves to be strongly deprecated. As such the record shows that the Vakalatnama of Mr.Y.N.Ravani was filed in the office on or before 21.04.2016 as per the endorsement made by the Registry on the Vakalatnama, and that the Second Appeal was admitted and the notices were issued in Civil Application No.11614 of 2015 as per the order passed on 21.04.2016 by the Coordinate Bench (Coram:Mohinder Pal, J.). Thereafter an appearance note was filed on 19.07.2017 in Civil Application No.11614 of 2015, by learned Advocate Mr.Y.N.Ravani stating that he had already filed his appearance in the main matter and therefore, his name be shown on record. There was no Vakalatnama filed on 19.07.2017. Hence, the statement of opponent no.3 that he had filed Vakalatnama of advocate Mr.Y.N.Ravani on 19.07.2017 is absolutely wrong and contrary to the record. The Purshish seeking permission to withdraw Second Appeal posing himself to be the sole appellant also appears to have been affirmed before the Notary on 19.07.2017 and not on 19.02.2017 as stated by him in his first affidavit. Such conduct on the part of the Page 19 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT opponent no.3Lalitbhai Parmar making the incorrect statements on oath without verifying the record and misleading the Court while withdrawing the Second Appeal, posing himself to be the sole appellant in the Second Appeal, tantamounts to fraud on Court, which deserves to be strictly viewed.
9. It is axiomatic that fraud vitiates everything including judicial acts. The legal position on what is fraud on Court has been elaborately discussed by the Supreme Court in the case of Ram Chandra Singh Vs. Savitri Devi and Ors. reported in (2003) 8 SCC 319. The relevant observations made therein are reproduced as under:
"22. Recently this Court by an order dated 3rd September, 2003 in Ram Preeti Yadav vs. U.P. Board of High School & Intermediate Education & Ors. reported in JT 2003 (Supp. 1 ) SC 25 held:
"13.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud."
14. In Lazarus Estate vs. Berly [1971] 2 W.L.R. 1149 the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment "no Court in this land will allow a person to keep an advantage which he has obtained Page 20 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
15. In S.P. Chengalvaraya Naidu vs. Jagannath 1994 (1) SCC 1 this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
24. xxx ... xxx ... xxx
25. xxx ... xxx ... xxx
26. xxx ... xxx ... xxx
27. In S.P. Chengalvaraya Naidu vs. Jagannath [ 1994 (1) SCC 1 ] this Court in no uncertain terms observed:
"The principles of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Propertygrabbers, tax evaders, bankloan dodgers and other Page 21 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
A fraud is an act of deliberate deception with the design of security something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."
28. In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. [ 1996 (5) SCC 550 ], this Court after referring to Lazarus Estates (supra) and other cases observed that 'since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order". It was further held:
"The judiciary in India also possesses inherent power, specially under Section Page 22 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business."
10. As elaborately discussed, the acts of the opponent no.3 (Original Appellant NO.1.4) being fraud on Court in view of the aforestated legal position, the proceedings and the order dated 11.09.2017 passed by the Court permitting the learned Advocate Mr.Y.N.Ravani to withdraw the Second Appeal stand vitiated. Though, the learned Advocate Mr.Y.N.Ravani had faintly argued that the applicant Viththalbhai Parmar had no authority to file the application seeking restoration of Second Appeal and the Civil Application seeking condonation of delay as his power of attorney was cancelled by the said Lalitbhai by giving public notice on 21.06.2017, the Court does not find any substance in the said submission. The Second Appeal was filed by Page 23 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT the said Vitthalbhai as the power of attorney holder of the legal heirs of the deceased Jesangbhai i.e. the Appellants. The application seeking restoration of the said Second Appeal, when it was dismissed for nonremoval of office objections, was filed by the said Vitthalbhai. The power of attorney was also a registered document. Of Course, it appears that it was cancelled by the opponent no.3 by giving a public notice on 21.06.2017, however the Court at this juncture is not required to examine, whether the said power of attorney is valid or not as on date. Since the Court has found that the opponent no.3 had withdrawn the Second Appeal, by committing fraud on Court, all the subsequent proceedings including the order permitting the withdrawal of the Second Appeal, have stood vitiated.
11. At this juncture, the Court cannot resists itself from observing that the learned Advocate Mr.Y.N.Ravani should not have requested the Court to permit him to withdraw the Second Appeal without verifying, as to whether the Court had ever permitted the opponent no.3, who was original appellant no.1.4 to transpose other appellants as the party respondents, and whether the opponent no.3 was in fact the sole appellant. Further, Mr.Ravani filed his Vakalatnama without obtaining the consent or the 'No Objection' from the concerned advocate M/s.
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Nanavati & CO., who was already on record
appearing for the appellants. It was the duty of the learned Advocate Mr.Y.N.Ravani and the professional curtesy also required that when the Vakalatnama of M/s. Nanavati & CO. was on record for the appellants, he should not have filed his Vakalatnama for the appellant No.1.4 Lalitbhai Parmar without obtaining the consent or the 'No Objection' from the said M/s. Nanavati & CO., and that too only for withdrawal of the Second Appeal.
12. The precise Rule 39 contained in ChapterII, PartV of the Bar Council of India Rules, framed under the Advocates Act, 1961, deserves to be quoted at this juncture:
"39. An advocate shall not enter appearance in any case in which there is already Vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the court stating reasons why the said consent should not be produced and he shall appear only after obtaining the permission of the Court."
13. In this regard, Rule 436 of the Gujarat High Court Rules 1993 also needs to be quoted which reads as under:
"436. An Advocate not to file his Vakalatnama without the consent of one who is already on record.
No advocate shall be permitted to file an appointment or memorandum of appearance in Page 25 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020 C/SA/238/2015 CAV IA JUDGMENT any proceedings in which another advocate is on record for the same party save with the consent of the former advocate on record or the leave of the Court, unless the former advocate has ceased to practise or has by reason or infirmity of mind or body or otherwise become unable to continue to act."
14. From the above quoted Rules, it is clear that no advocate can enter appearance in a case in which there is already a Vakalatnama or memo of appearance filed by an advocate engaged for a party except with his consent or with the permission of the Court. No such consent of M/s.Nanavati & Co. or no such permission from the Court was obtained by Mr.Ravani before filing his appearance.
15. It is needless to say that when the Court permits any advocate to withdraw the proceedings relying upon his request, it is obligatory on the part of the concerned advocate to act with full responsibility, and in accordance with the Rules in force. The office or the Registry is also duty bound to check whether the proceedings or documents are filed by the parties and their advocates in accordance with the High Court Rules in force. It was very unfortunate that Mr.Ravani instead of expressing regret, had tried to defend the opponent no.3 during the course of his arguments, who had made him an instrumental in committing fraud on Court, while seeking permission to withdraw the appeal.
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16. Since, the Court has found that the opponent no.3 (appellant No.1.4) Lalitbhai Parmar had misled the Court and committed fraud on the Court by submitting the purshish seeking permission to withdraw the Second Appeal posing himself to be the sole appellant through the learned Advocate Mr.Y.N.Ravani, the applications are allowed by imposing cost on the opponent no.3 of Rs.2,00,000/ (Rupees Two Lacs only) to be deposited in the Court within one week from today. The order dated 11.09.2017 passed by the Court permitting the opponent no.3 to withdraw the Second Appeal No.238 is recalled. The Second Appeal is restored on file to its original number and status. Rule is made absolute in both the applications.
17. The office is directed to report the compliance of this order. The copy of the order be circulated in the concerned departments of the Registry of the High Court, and be also sent to all the District Courts and Subordinate Courts by email.
Sd/-
(BELA M. TRIVEDI, J) TUVAR Page 27 of 27 Downloaded on : Sat Feb 15 02:17:04 IST 2020