Lions Club Of Naroda vs Laljibhai Purshottambhai Makwana on 6 October, 2018

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Gujarat High Court

Lions Club Of Naroda vs Laljibhai Purshottambhai Makwana on 6 October, 2018

Bench: K.M.Thaker

       C/SCA/17552/2011                                      IA ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              MISC. CIVIL APPLICATION NO. 2 of 2018
        IN R/SPECIAL CIVIL APPLICATION NO. 17552 of 2011
==========================================================

LIONS CLUB OF NARODA Versus LALJIBHAI PURSHOTTAMBHAI MAKWANA ========================================================== Appearance:

MR MUKUND M DESAI for the PETITIONER(s) No. for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 06/10/2018 IA ORDER

1. Heard Mr. Chauhan, learned advocate for Mr.Mukund M. Desai, learned advocate for the applicant. In present application, the applicant has, interalia, prayed in para 25(A) and (B) that: "25(A)YOUR LORDSHIPS may be pleased to allow present Misc. Civil Application;

25(B)YOUR LORDSHIPS may be pleased to recall/modify/cancel the order dated 11.09.2018 passed in Spcial Civil Application No.17552 of 2011 and restore the matter being Special Civil Application No.17552 of 2011 on its original file;"

The applicant is original petitioner in Special Civil Application No.17552 of 2011.

2. The applicant(petitioner) has filed said Special Civil Application No.17552 of 2011 against the Order dated 18.10.2010 passed by the Tribunal in Execution Page 1 of 16 C/SCA/17552/2011 IA ORDER Application No.48 of 2003.

3. In the said Special Civil Application No.17552 of 2011, the applicant(petitioner) has also challenged Order dated 12.08.2001 passed below Exhibit 94 in review application.

4. In Special Civil Application No.17552 of 2011, this Court passed below quoted Order on 17.07.2012: "Rule returnable on 28.08.2012.

There shal eb stay of the impugned order on condition that the petitioner shall deposit balance amount of Rs.4,15,420/ with the Registry of this Court on or before the returnable date. On such amount being deposited, the same shall be invested by the Registry by way of a fixed deposit with a nationalised bank initially for a period of one year and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the petition. Both the parties will complete their pleadings before the returnable date."

5. It is not in dispute that the applicant(petitioner) has not challenged the said Order dated 17.07.2012. The said Order is not set aside by Appellate Court.

6. The said Order, despite passage of almost 7 years, is not completely complied by the applicant petitioner.

7. At this stage, it is also relevant to note that vide judgment dated 20.07.1998 in Application No.1 of 1994 learned Tribunal passed certain directions against the present applicant (petitioner) which included the direction to pay Rs.95,000/ towards Page 2 of 16 C/SCA/17552/2011 IA ORDER difference of short paid/unpaid salary and to regularly pay the salary as per the directions in the Judgment dated 20.07.1998 in Application No.1 of 1994.

8. The present applicant(petitioner), thereafter filed review application before the learned Tribunal. The applicantpetitioner requested the Tribunal to recall the order passed in application No.1 of 1994 and to allow the applicantpetitioner to lead oral evidence and to decide the application afresh.

9. The said review application came to be rejected by the Tribunal vide Order dated 15.06.1998.

10. The applicant(petitioner) even thereafter did not comply the judgment dated 20.07.1998 passed in main application No.1 of 1994.

11. The said inaction of the applicant(petitioner) compelled the employee to file execution application.

12. Therefore, the employee filed execution application No.48 of 2003.

13. The said application is still pending.

14. The applicant(petitioner) claims that during the pendency of the execution application the applicant(petitioner) paid certain amount to the employee.

15. It appears that during the pendency of the said Page 3 of 16 C/SCA/17552/2011 IA ORDER execution application couple of orders came to be passed.

16. In reply to the query by the Court, learned counsel for the applicant(petitioner) would, after taking further instructions, submit that the execution application is still pending.

17. The factual background is mentioned only with a view to taking note of the fact that according to the employee the order passed in 1998 (i.e. almost 20 years ago) is not completely complied by the applicant(petitioner) and therefore, the execution application is still being prosecuted.

18. Having regard to the facts of the case, the Court considered it proper to direct the applicant(petitioner) to deposit Rs.4,15,420/. Therefore, the order dated 17.07.2012 came to be passed.

19. When the said order came to be passed, the execution application was pending. Even today, the said application is pending.

20. It is relevant to note that almost 15 years have been passed, however, execution application is not completed.

21. The said order dated 17.07.2012 came to be passed during pendency of the said execution application.

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C/SCA/17552/2011 IA ORDER

22. Though any the order does not appear to have been passed by this Court so as to stay the proceedings of execution application, it appears that probably on the ground that petition is pending further proceedings of the execution application are stalled.

23. Undisputedly the order dated 20.07.1998 passed in the main application i.e. 1 of 1994 has attained finality.

24. It is pertinent to note that from 1994 to 2011, (when the applicant(petitioner) filed present petition), the said order dated 20.7.1998 in the main application No.1 of 1994 was not challenged.

25. Even in the present petition the said order is not challenged.

26. Thus, the said order has attained finality.

27. On the otherhand, the grievance and allegations made by the applicant(petitioner) in the execution application bring out that the said order dated 20.07.1998 is not completely complied and honoured by present applicant(petitioner).

28. Of course, it is claimed that during the pendency of the execution application the applicant(petitioner) has paid certain amount to the employee.

29. However, if the entire amount payable by the Page 5 of 16 C/SCA/17552/2011 IA ORDER applicant(petitioner) to the employee in compliance of the Judgment dated 20.07.1998 had been paid by the applicant(petitioner) then the execution application would have come to an end and would have been disposed of.

30. Above mentioned details and facts bring out that the judgment passed in July 1998 is still not finally and completely complied by the applicant(petitioner).

31. Such applicant(petitioner), who does not completely comply the order though the judgment has attained finality, does not deserve audience.

32. As mentioned above, the direction to deposit Rs.4,15,420/ came to be passed by this Court in July 2012.

33. Instead of complying the said order dated 17.07.2012 the applicant(petitioner) has filed Misc. Civil Application No.3184 of 2012 and prayed that said order dated 17.07.2012 should be modified.

34. Not only this but the applicant(petitioner) also prayed that the opponent judgment creditor i.e. employee should be directed to deposit the amount which has been paid to him for the period from 21.07.1996 to 31.07.2006 i.e. (for a span of almost 10 years).

35. The said application came to be rejected by this court vide Order dated 21.03.2014. This Order dated 21.03.2014 reads as under: Page 6 of 16 C/SCA/17552/2011 IA ORDER "1. By way of this application, the applicant has prayed for following reliefs: [A] to admit the Msc. Civil Application and modify the order dated 17.07.2012 by allowing the same.

[B] to modify the order dated 17.07.2012 by passing appropriate orders.

[C] to direct the opponent judgment creditor to deposit the amount which has been paid to him for the period from 21.07.1996 to 31.07.2006 by passing appropriate orders.

[D] pending admission, hearing and final disposal of this Misc. Civil Application, the order dated 17.07.2012 in so far as it directs the deposit of the amount, be ket in abeyance by passing appropriate orders. [E]xxx

2. Earlier on 21.02.2014 this matter was listed for hearing. However, on that day, matter was adjourned at the instance of learned advocate for the applicants. Even today, when the matter was called out, none appears on behalf of the applicants. Therefore, this Court has no other option but to proceed with the matter. Looking to the reliefs, as prayed for, in this application, I am of the opinion that if the relief is granted, the same would amount to practically execute the order of the Tribunal. Hence, the present application is rejected."

36. Even after rejection of the said application the applicant(petitioner) did not comply the Order dated 17.07.2012.

37. Above narration of the facts bring out that on one hand the applicant(petitioner) has not completely complied the Judgment which came to be passed in the year 1998 and on the other hand, the applicant(petitioner) has disregarded this Court's Order dated 17.07.2012 and even after the request to modify the Order dated 17.07.2012 came to be rejected, the applicant(petitioner) did not comply & has not complied this Court's Order.

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C/SCA/17552/2011 IA ORDER

38. The conduct of the applicantpetitioner brings out that the applicantpetitioner seems to be under impression it is above Court's order and it enjoys impunity and that it is not required to obey the Court's order. He can seek relief from the Court but may not comply the Orders/condition passed by the Court.

39. If the applicantpetitioner had any grievance or any reservation with regard to order dated 17.07.2012, he should have carried the said order before the Appellate Court with a request to set aside or modify the Order.

40. The applicantpetitioner never carried the order in appeal.

41. Even the Order dated 21.03.2014 passed in Misc. Civil Application No.3184 of 2012 is also not carried in appeal.

42. Therefore, it is necessary to note that the conduct of the applicantpetitioner reveals the adamant attitude and the notion which the applicant petitioner carries namely that the Court's order may not be complied with and the Court's orders can be disregarded.

43. The applicantpetitioner not only continue to nurture such notion for almost six years but during passage of time the applicantpetitioner even neglected to attend the proceedings of petition.

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C/SCA/17552/2011 IA ORDER

44. It appears that the applicantpetitioner adopted a strategy to prolong proceedings of Special Civil Application No.17552 of 2011.

45. The absence of the applicantpetitioner at the time when the matter is taken up for hearing demonstrate that the petitioner considered it appropriate to neglect the proceedings.

46. The Court was constrained to pass below quoted order dated 09.10.2014:

"When the petition is called out and taken up for hearing learned advocate for the petitioners is not present. It is informed that learned advocate for the petitioners has filed leave note. As a last chance hearing is adjourned with the clarification that if learned advocates are not present on the next date of hearing then appropriate orer will be passed."

47. Ultimately, this Court was compelled to pass Order dated 16.08.2018 whereby the Court dismissed the petition on the ground of nonprosecution. Said Order dated 16.08.2018 reads as under: "1. This petition is pending since 2011.

2. The petition came to be admitted vide order dated 17.07.2012.

3. By the said order dated 17.07.2012, the Court granted conditional interim relief, which would operate only on compliance of the condition imposed by the Court.

4. The said order dated 17.07.2012 reads thus:

"Rule returnable on 28.08.2012. There shal eb stay of the impugned order on condition that the petitioner shall deposit balance amount of Rs.4,15,420/ with the Registry of this Court on or before the returnable date. On such amount being deposited, the same shall be invested by the Registry by way of a fixed deposit with a nationalised bank initially for Page 9 of 16 C/SCA/17552/2011 IA ORDER a period of one year and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the petition. Both the parties will complete their pleadings before the returnable date."

5. Since then, the petition has been adjourned on may occasions, however the petitioners did not attend hearing of the petition.

6. Therefore, this Court was constrained to pass an order on 09.10.2014:

"When the petition is called out and taken up for hearing learned advocate for the petitioners is not present. It is informed that learned advocate for the petitioners has filed leave note.

As a last chance hearing is adjourned with the clarification that if learned advocates are not present on the next date of hearing then appropriate orer will be passed."

7. Even thereafter, the petitioners are not attending the hearing.

8. Today also, learned Counsel for the petitioners is not present and the petitioners are also not present.

9. Any request for passover or adjournment is also not made.

10. The petitioners have either abandoned the proceedings or cause to prosecute the petition does not survive, so far as the petitioners are concerned.

11. Be that as it may, the fact reveals that the petitioners have neglected the proceedings.

12. Therefore the petition deserves to be dismissed on the ground of nonprosecution. Rule is discharged. Interim relief granted earlier stands vacated forthwith."

48. Thereafter, the applicantpetitioner filed Misc. Civil Application No.1 of 2018 wherein this Court has passed below quoted Order dated 07.09.2018:

"1. Heard learned counsel appearing for the contesting parties.

2. Having regard to the facts of the case and in view of the submissions made by learned counsel for the parties, Rule. Rule returnable forthwith. Mr. Deshmukh has waived service of Rule and with his consent the application is taken up for hearing and decision today.

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C/SCA/17552/2011 IA ORDER

3. In present application, the applicant has prayed that:

"26(B) YOUR LORDSHIPS may be pleased to recall, modify, alter, amend, cancel the order dated 16.8.2018 passed in Special Civil ApplicationNo.17552 of 2011 and restore the matter being Special Civil Application No.17552 of 2011 on its orginal file;"

4. Having regard to the submissions made by learned cousel for the appliant the order dated 16.8.2018 passed in Special Civil Application No.17552 of 2011 is recalled on the condition that the applicant - petitioner will conduct the petition on merits today and will pay Rs.5,000/ (Rupees Five Thousand only), out of which Rs.4,000/ to Advocates' Library and Rs.1,000/ (Rupees One Thousand only) to the concerned workman.

5. Office is directed to restore the proceeding of Special Civil Application No.17552 of 2011 to its original file.

6. Present application is allowed in terms of para 22(B). Rule is made absolute to te aforesaid extent."

49. On the same day (i.e. after restoration of Special Civil Application No.17552 of 2011) this Court passed another Order dated 07.09.2018 in the petition i.e. Special Civil Application No.17552 of 2011 which reads as under: "Petitioner No.2 and the Secretary of petitioner No.1 shall remain personally present in this Court and explain the conduct of not complying the directions vide order dated 17.7.2012 from the said date till 7.9.2018.

S.O. to 11.9.2018.

Further, in view of the fact that the said condition is not complied and the amount is not deposited, as of now i.e. with effect from today, the interim relief stands vacated."

50. It is pertinent to note that after the petition came to be restored with the order dated 07.09.2018 of this Court further hearing was scheduled on 11.09.2018, again on 11.09.2018 no one attended the hearing. Therefore, this Court was constrained to Page 11 of 16 C/SCA/17552/2011 IA ORDER pass below quoted order dated 11.09.2018: "On 16.8.2018 this Court passed below quoted order:

1. This petition is pending since 2011.

2. The petition came to be admitted vide order dated 17.07.2012.

3. By the said order dated 17.07.2012, the Court granted conditional interim relief, which would operate only on compliance of the condition imposed by the Court.

4. The said order dated 17.07.2012 reads thus:

"Rule returnable on 28.08.2012. There shal eb stay of the impugned order on condition that the petitioner shall deposit balance amount of Rs.4,15,420/ with the Registry of this Court on or before the returnable date. On such amount being deposited, the same shall be invested by the Registry by way of a fixed deposit with a nationalised bank initially for a period of one year and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the petition. Both the parties will complete their pleadings before the returnable date."

5. Since then, the petition has been adjourned on may occasions, however the petitioners did not attend hearing of the petition.

6. Therefore, this Court was constrained to pass an order on 09.10.2014:

"When the petition is called out and taken up for hearing learned advocate for the petitioners is not present. It is informed that learned advocate for the petitioners has filed leave note.

As a last chance hearing is adjourned with the clarification that if learned advocates are not present on the next date of hearing then appropriate order will be passed."

7. Even thereafter, the petitioners are not attending the hearing.

8. Today also, learned Counsel for the petitioners is not present and the petitioners are also not present.

9. Any request for passover or adjournment is also not made.

10. The petitioners have either abandoned the Page 12 of 16 C/SCA/17552/2011 IA ORDER proceedings or cause to prosecute the petition does not survive, so far as the petitioners are concerned.

11. Be that as it may, the fact reveals that the petitioners have neglected the proceedings.

12. Therefore the petition deserves to be dismissed on the ground of nonprosecution. Rule is discharged. Interim relief granted earlier stands vacated forthwith."

Thereafter following order came to be passed on 7.9.2018: "Petitioner No.2 and the Secretary of petitioner No.1 shall remain personally present in this Court and explain the conduct of not complying the directions vide order dated 17.7.2012 from the said date till 7.9.2018.

S.O. to 11.9.2018.

Further, in view of the fact that the said condition is not complied and the amount is not deposited, as of now i.e. with effect from today, the interim relief stands vacated."

Despite said order dated 7.9.2018 today Secretary of the petitioner No.1 and petitioner No.2 are not present.

When the petition is called out and taken up for hearing learned advocate for the petitioner is also not present. Any request for passover or adjournment is also not made. Any explanation with regard to conduct of petitioner Nos.1 and 2 is not offered. Any affidavit is not filed. The petitioners have neglected the hearing.

It appears that the petitioners do not want to comply the direction passed by the Court vide order dated 7.9.2018.

Therefore the petition is dismissed for non prosecution. Rule is discharged. Adinterim / interim relief if any, stands vacated forthwith."

51. By the said order of this Court the petition came to be dismissed on the ground of non prosecution.

52. Therefore, the applicantpetitioner has Page 13 of 16 C/SCA/17552/2011 IA ORDER preferred present application.

53. As mentioned earlier the chronology of evidence in the present case demonstrate that the applicant petitioner does not deserve audience.

54. The applicantpetitioner who approach this Court with request to exercise extraordinary and discretionary jurisdiction should be careful to comply the Court's order/conditions passed by this Court unless the same are set aside/modified in appeal.

55. The applicantpetitioner cannot on its own discretion and will decide as to whether he would comply the Court's order or disobey and disregard the Court's order.

When this Court pass order/condition the dignity, sanctity & honour of said order should be maintained and respected by one and all. The Court shall zealously & jealously guard its dignity & honour. The person with grievance against the order should pursue proper procedure to redress his grievance. But the litigant himself cannot decide to not comply the order, unless appeal Court modifies it.

56. In present case, the applicantpetitioner on its own decided to neglect, disobey and disregard this Court's orders.

57. The applicantpetitioner has already committed contravention and has disobeyed the order passed by Page 14 of 16 C/SCA/17552/2011 IA ORDER the Tribunal dated 20.07.1998.

58. For 20 years he has not completely complied the said judgment. Of course in the present application, the applicantpetitioner wants to claim that he has complied the said judgment.

59. Despite this position, today at the time of hearing of present application the Court instructed learned Counsel for the applicantpetitioner that actually the request of applicantpetitioner does not deserve to be entertained however the Court would consider the request (to restore the proceedings) if the order dated 17.07.2012 is complied today. However, the learned Cousel upon receiving instructions from the applicantpetitioner, even after passage of 6 years, seeks more time to comply the order.

60. In light of facts of present case and having regard to the fact that the applicantpetitioner has on its own notion and on its own discretion disregarded and disobeyed this Court's order dated 17.07.2012 and after almost 6 years the applicant petitioner has not complied this Court's order, this Court is of the considered view that in the present case the applicantpetitioner is not entitled to request the Court to exercise extraordinary and discretionary jurisdiction.

61. The applicantpetitioner, has, by his conduct, lost the opportunity of hearing and opportunity of Page 15 of 16 C/SCA/17552/2011 IA ORDER audience.

62. The Court is not inclined to entertain proceedings by applicantpetitioner who does not comply the Court's Order.

63. As mentioned above, if the applicantpetitioner had any reservation with regard to the order it could have carried the order in appeal and requested the Appellate Court to modify or vacate the Order.

64. Instead of that the applicantpetitioner on its own notion disregarded and disobeyed this Court's Order.

65. This Court, in the aforesaid background, is not inclined to entertain the request made by present applicantpetitioner. Therefore, present application is rejected.

(K.M.THAKER, J) RAVI PATEL Page 16 of 16

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