Gujarat High Court
Manubhai vs Amratlal on 9 December, 2011
Gujarat High Court Case Information System
Print
MCA/2537/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 2537 of 2011
In
SPECIAL
CIVIL APPLICATION No. 13992 of 2011
=========================================================
MANUBHAI
SENDHABHAI BHARWAD - Applicant(s)
Versus
AMRATLAL
SOMABHAI & 4 - Opponent(s)
=========================================================
Appearance
:
MR
VIRAL V DAVE for
Applicant(s) : 1,MR PRASAD N BHATT for Applicant(s) : 1,
None for
Opponent(s) : 1, 1.2.1,1.2.2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 09/12/2011
ORAL
ORDER
The applicant has filed this application to recall order dated 19.9.2011 passed in Special Civil Application No. 13992 of 2011 and to restore the said Special Civil Application on file.
2. It is contended by the applicant-original plaintiff that Special Civil Application No. 13992 of 2011 was filed before this Court challenging the order passed by learned City Civil Judge, Ahmedabad, below application No. 212 in Civil Suit No. 2146 of 2006 seeking amendment in the plaint. At the time of making submission, the advocate could not notice paragraph Nos. 14 and 16 of Exh. 212 and hurriedly through oversight considered only paragraph No. 15 and withdrew the Special Civil Application. On account of bona fide mistake on the part of the advocate, the petition was withdrawn. If paragraph Nos. 14 and 16 of Exh. 212 are considered then the applicant has good case and therefore relief as claimed is required to be granted.
3. I have heard learned advocate Mr. Bhatt for the applicant at length and in great detail. He has mainly reiterated averments made in the application and relied on the following authorities:
1. JET PLY WOOD PVT. LTD. VS. MADHUKAR NOWLAKHA reported in AIR 2006 SC 1260
2. KAILASH VS. NANHKU reported in AIR 2005 SC 2441
3. S.K. SEN VS. STATE OF BIHAR reported in AIR 1975 SC 1185
4. DHARAM CHAND VS. JOGESHWAR reported in AIR 2009 RAJ 73
5. SURAT RAM VS. STATE OF HIMACHAL PRADESH reported in AIR 1975 H.P. 23
4. It appears from the copy of the impugned order that learned advocate sought permission to withdraw the petition and the Court granted permission and disposed of the petition as withdrawn. The averments made in the application indicate that learned advocate could not notice paragraph Nos. 14 and 16 of Exh. 212 and only considering paragraph No. 15 withdrew the petition. This clearly indicates that learned advocate was not faithful to his duty and conducted the matter without required preparation. The averments also indicate that serious allegations of negligence are levelled against the advocate who withdrew the petition. Nothing is brought on the record of the case that learned advocate did not consider paragraph Nos. 14 and 16 of Exh. 212 as claimed in the application and withdrew the petition. It appears that this application is filed only with a view to come out from the order passed by the Court which is sought to be recalled. Mere allegation of oversight in considering part of application Exh. 212 without any support is not a ground to recall the order which was passed by the Court at the instance of learned advocate. There is nothing to indicate that learned advocate while withdrawing the petition did not read paragraph Nos. 14 and 16 of Exh. 212. Therefore, in my view the applicant has failed to make out a case to recall the order.
5. The decision relied on by learned advocate for the applicant in the case of JET PLY WOOD PVT. LTD. VS. MADHUKAR NOWLAKHA (supra) is not applicable as the said decision is in respect of provision of Order 23 Rule 1 and Order 43 Rule 1-A and Section 151 of the Code of Civil Procedure.
6. Learned advocate Mr. Bhatt has relied on the decision in the case of KAILASH VS. NANHKU (supra) where the Hon'ble Supreme Court has observed that all the rules of procedure are handmaid of justice. In the present case, as observed earlier, the applicant has not been able to make out any case to recall the order. Therefore, this decision is also not applicable to the facts of the present case.
7. In the case of SURAT RAM VS. STATE OF HIMACHAL PRADESH (supra) the petition was withdrawn in a moment of misunderstanding. In the present case there is nothing to indicate that there was misunderstanding. Therefore, this decision cannot be made applicable to the present case.
8. In the case of DHARAM CHAND VS. JOGESHWAR (supra) the High Court has held that withdrawal of earlier suit cannot bar subsequent suit merely because there was some overlapping of cause of action in subsequent suit compared with earlier suit. In the facts of the present case, this decision is not applicable.
9. In view of above, there is no merit in the case. Hence the application stands dismissed. No order as to costs.
(BANKIM N. MEHTA, J) (pkn) Top