Gujarat High Court
Rajendra Kumar Natvarlal Joshi & 7 vs Ashoka Cotsyn & 1....Opponent(S) on 15 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/1564/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR RESTORATION) NO. 1564 of 2016
In
SPECIAL CIVIL APPLICATION NO. 15390 of 2011
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RAJENDRA KUMAR NATVARLAL JOSHI & 7....Applicant(s)
Versus
ASHOKA COTSYN & 1....Opponent(s)
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Appearance:
MR BHARAT SHAH, ADVOCATE for the Applicant(s) No. 1 - 8.3 , 9 - 17
MRS MAUNA M BHATT, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 15/06/2017
ORAL ORDER
1. When the application is called out and taken up for hearing, learned advocate for the applicants is not present.
2. It is pertinent to note that by this application the applicants have prayed that the order dated 25.4.2006 may be recalled and the proceedings of Special Civil Application No.15390 of 2011 may be restored.
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3. The applicants and/or learned advocate do not have time to attend the hearing of the application and no one is interested for conducting the application seeking restoration of the main petition.
4. It would not be out of place to take note of the order dated 23.8.2016, wherein this Court observed, inter alia, that:
"In respect of main petition, i.e. Special Civil Application No.15390 of 2011, this Court passed below quoted order on 25.4.2016: So far as this petition is concerned since 22.2.2016 the proceedings have been adjourned on account of one reason or another urged by the learned advocate for the petitioners.
In view of the request made by learned advocate for the petitioners on 21.3.2016 the hearing was adjourned to today.
This petition is listed at serial No. 1 in today's cause list.
When the petition is called out and taken up for hearing learned advocate for the petitioners is not present.
On his behalf any request for passover or adjournment is also not made.
No one has attended the hearing on behalf of the petitioners.
Learned advocate for the petitioners has not filed leave note or sick note. The hearing is neglected by the petitioners.
Despite this position the Court heard Mr. Bhatt, learned Senior Counsel for the respondent with the hope that by the time Mr. Bhatt, learned Senior Counsel completes his submissions, learned advocate for the petitioner would attend the hearing or someone else would attend the hearing or atleast some request may be made. The Court heard Mr. Bhatt, learned Senior Counsel for the respondent until 11.35 a.m. however no one from the side of petitioner appeared and attended the Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Jun 15 23:47:59 IST 2017 C/MCA/1564/2016 ORDER hearing.
Having regard to the order passed by Hon'ble Apex Court in Petition(s) for Special Leave to Appeal (C) No. 16511652 of 2015 this Court inquired from Mr. Bhatt, learned Senior Counsel why the respondent and the petitioners have not been paid wages at par with other workmen who were paid 100% backwages and why the petitioners have been granted 50% backwages. In reply, Mr. Bhatt, learned Senior Counsel for the respondent submitted that the allegation by workmen is not true and the petitioners have not placed any material to support said allegation. Having regard to the above facts, more particularly that no one has attended the hearing until 11.35 a.m. and any request for passover or adjournment is also not made on behalf of the petitioners, the Court deems it appropriate to dismiss the petition on the ground of nonprosecution.
In view of the submission by learned Senior Counsel for the respondent, the Court would have decided the petition on merits.
However instead of dismissing the petition on merits the petition is dismissed on the ground of non prosecution so that if the petitioners are interested in prosecuting the petition on merits they may avail opportunity within time permissible under Rules. For the aforesaid reasons the petition stands dismissed for nonprosecution.
2. Thereafter, the petitioner preferred present application wherein it is prayed, inter alia, that: 4(A) Your Lordships may be pleased to allow this Misc. Civil Application and pass an order to restore the Sp.C.A.No.15390/2011 to its original file which was disposed of on 25.04.2016 and be further pleased to fix the matter for next hearing at an early date.
3. In view of the fact that the application lacks even basic details, below quoted order was passed on 20.6.2016: Right from the first date when the application is listed before this Court, adjournments are sought on one ground or another by learned advocate for the applicants.
On previous occasion, the hearing of the application had to be adjourned because the restoration application lacked preliminary and basic averments. For the said reason, the application deserved to be rejected, however, at the request of learned advocate for the applicants, time was granted.
Today adjournment is request for on the ground of personal difficulty and it is submitted that the amendment application could not be prepared on account of personal difficulty.Page 3 of 5
HC-NIC Page 3 of 5 Created On Thu Jun 15 23:47:59 IST 2017 C/MCA/1564/2016 ORDER It appears that the applicants are not interested in conducting the petition on merits despite the directions by the Hon'ble Apex Court. S.O. to 1.7.2016.
4. Subsequently, the applicants appear to have filed in the registry an affidavit dated 4.8.2016. Thereafter, this application is listed today for appropriate orders.
However, today also, learned advocate for the applicants petitioners is not present when the application is called out and taken up for hearing. It is incomprehensible that despite the order by Hon'ble Apex Court, learned advocate for the petitioners is not at all serious in conducting the petition on merits and on one ground or other, either adjournments are sought for in the petition or the hearing is not attended at the time when the matter is called out in seriatim i.e. in order as per the listing in the cause list. The order dismissing the petition on the ground of non prosecution will only cause difficulty for the original petitioners. Therefore, despite above mentioned facts, the court feels restrained in again dismissing the petition on ground of nonprosecution. On the other hand, in view of the facts involved in the case, it is not possible to decide the matter in absence of learned advocate for the petitioners or petitioners themselves and by considering submissions from the side of employer.
Therefore, hearing of the application is adjourned with instructions to the office that present application / petition may be listed for hearing only after the petitioners or learned advocate for the petitioners file an application stating that the hearing of the application and the petition will be attended without default and the matter will be conducted on merits.
The application and the petition shall be listed for hearing only after such application is filed by the parties."
5. It appears that in pursuance of the said order, the application came to be filed before the Registry with a request to list the application for hearing and appropriate order. Even after filing the said application, the Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Jun 15 23:47:59 IST 2017 C/MCA/1564/2016 ORDER applicant has not attended the hearing of the application.
6. Any request for passover or adjournment is also not made.
7. Under the circumstances, the Court is constrained to dismiss the application on ground of nonprosecution.
(K.M.THAKER, J.) Bharat Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Jun 15 23:47:59 IST 2017