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2022 DIGILAW 1726 (GUJ)

Thakkar Vasudev Kanaiyalal v. State of Gujarat

2022-12-08

NIKHIL S.KARIEL

body2022
ORDER : Special Civil Application No. 19886 of 2021 1. Heard Party-in-person viz. Thakkar Vasudev Kanaiyalal the petitioner, learned AGP Ms. Megha Chitaliya for the respondent – State and learned Advocate Mr. Uday M. Joshi for the respondents. 2. Since the issues are inter-connected arising from the same proceedings and between the same parties, hearing of all three matters are taken up together and whereas by this common order, the said applications are being disposed of. 3. Special Civil Application No.19886 of 2021 calls into question an order dated 30.11.2021 passed by the learned 23rd Additional Senior Civil Judge, Vadodara, passed below Exh. 13 in Review Application No. 2 of 2021 whereby the learned Court had permitted an application by the applicants of Exh. 13 to withdraw the Review Application in spite of objections filed by the Party-in-person - petitioner herein. 4. This Court has considered the submission of the Party-in-person as well as perused the application below Exh. 13 as well as order dated 30.11.2021. 5. It appears that the applicant had filed the Review Application against an order dated 18.03.2021 passed below Exh.240 in RCS No.72 of 1998 and below Exh. 424 in RCS No.73 of 1998 and whereas eventually on 17.11.2021, the learned advocate for the applicants had filed a withdrawal pursis seeking withdrawal of the Review Application. The Party-in-person appears to have taken an objection to such withdrawal and whereas it also appears that the Party-in-person were aggrieved by the form of the withdrawal pursis. The learned Civil Court, had in spite of the objections of the Party-in-person had permitted withdrawal of the application, being aggrieved by which order the present application has been preferred. 6. In the considered opinion of this Court, a respondent - defendant may have a right to object against an application for withdrawal, if either such withdrawal would in any way effect the rights of the respondent - defendant or the said withdrawal application would in any way prejudice the said party. In the instant case, there does not appear to be any reasons mentioned by the Party-in-person for questioning the application for withdrawal as it is also noted that the withdrawal application was also unconditional. Since such withdrawal application was unconditional, in the considered opinion of this Court, such application did not have the capacity of prejudicing the present applicant in any manner whatsoever. Since such withdrawal application was unconditional, in the considered opinion of this Court, such application did not have the capacity of prejudicing the present applicant in any manner whatsoever. Moreover, as noted hereinabove, the petitioner – Party-in-person has not been able to submit as to how, he would be prejudiced by the withdrawal of the Review Application. The Party-in-person has attempted to argue on merits of the order of which review had been sought for originally but on a specific query being raised as to whether the order dated 18.03.2021 had been challenged by the Party-in-person that is the order, in which, the Review Application had been filed by the applicants, who sought withdrawal, having been challenged by the Party-in-person, the reply was in negative. 7. Under such circumstances, in the opinion of this Court, the party-in-person as defendant not being able to show any prejudice on account of such permission to withdraw the review application in the considered opinion of this Court, no error whatsoever has been committed by the learned Civil Court vide the impugned order in permitting withdrawal of the Review Application. Hence, the present application being meritless and is rejected. Order in Special Civil Application No.22285 of 2022 & Special Civil Application No.21956 of 2022 1. Special Civil Application No.22285 of 2022 is filed with a prayer for transfer of the pending cases from the Court where the said applications are pending to any other Court. It is attempted to be submitted by the Party-in-person that the learned Court below has prohibited the Party-in-person from making oral submissions and whereas the certain other allegations are made against the learned Judge, which this Court does not deem it appropriate to record in the present order. As noted by this Court vide order dated 08.11.2022, the Party-in-person appears to have made a complaint against the learned Judge before the State Government through Legal Department and whereas the Party-in-person appears to have intimated to the Court concerned that since he had filed a complaint against the said learned Judge, therefore, the learned Judge should desist from hearing of the applications. It also appears that the present applicant had preferred an application under Section 24 of the Code of Civil Procedure before the learned Principal District Judge at Vadodara praying for transfer and whereas vide order dated 23rd September, 2022, the learned Principal District Judge, Vadodara has been pleased to reject the said application. 2. Having regard to the grievance raised by the Party-in-person and having perused the documents on record, this Court is of the opinion that no litigant ought to be given a right to choose whether he wants to appear before a particular Judge or not. In the instant case, the learned Court while prohibiting the Party-in-person from making oral submissions has inter alia noted that the Party-in-person does not answer directly to the queries of the Court and whereas the Party-in-person does not maintain the dignity of the Court and whereas the Party-in-person is arguing irrelevant issues and therefore, the learned Court below has observed that to avoid any orders being passed against the Party-in-person, the Party-in-person was given right to make written submissions whereas the Party-in-person was prohibited from making oral submissions. 3. This Court has also noted the observations made by the learned Principal District Judge, Vadodara while passing order dated 23.09.2022, whereby the learned Principal District Judge has, inter alia, while rejecting the application for transfer has also observed that there was a clear attempt by the Party-in-person to pressurize the learned Court. 4. In this view of the matter, as noted hereinabove while this Court is of the firm belief that a litigant cannot be permitted to choose a Court where he will make submissions with regard to his case and whereas this Court has also found that no error whatsoever has been committed by the learned Principal District Judge, Vadodara in passing order dated 23.09.2022, whereby the application preferred by the present applicant is rejected. 4.1. At this stage, this Court seeks to refer to and rely upon decision of the Hon’ble Apex Court in the case of Garment Craft vs. Prakash Chand Goel reported in reported in (2022) 4 SCC 181 . 4.2. Observations of the Hon’ble Apex Court at paragraph No.15 being relevant for the present purpose are reproduced herein below for benefit : “15. 4.2. Observations of the Hon’ble Apex Court at paragraph No.15 being relevant for the present purpose are reproduced herein below for benefit : “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 4.3. Considering the law laid down by the Hon’ble Apex Court as above, it appears that the Hon’ble Apex Court has clearly laid down the extent of jurisdiction that could be exercised by this Court under Article 227 of the Constitution of India. The Hon’ble Apex Court, has, inter alia, observed that the High Court while exercising jurisdiction under Article 227 is not to re-appreciate or reweigh the evidence or facts upon which the determination under challenge is based. The Hon’ble Apex Court has further observed that supervisory jurisdiction is not to be exercised when the final finding is justified or can be supported. The Hon’ble Apex Court has further held that the supervisory jurisdiction is to be exercised only to set right grave dereliction of duty or flagrant abuse or violation of fundamental principles of law or justice. The Hon’ble Apex Court has further observed that supervisory jurisdiction is not to be exercised when the final finding is justified or can be supported. The Hon’ble Apex Court has further held that the supervisory jurisdiction is to be exercised only to set right grave dereliction of duty or flagrant abuse or violation of fundamental principles of law or justice. The Hon’ble Apex Court has also observed that the power is to be exercised sparingly where there is no evidence or the findings are perverse. Finally, the Hon’ble Apex Court has observed that the discretionary relief must be exercised to ensure that there is no miscarriage of justice. 4.4. Considering the decision passed by the learned Principal Judge, which is under challenged, in the considered opinion of this Court that neither there is any grave dereliction of duty or flagrant abuse or violation of fundamental principles of law or justice, which would warrant interference. Furthermore, the impugned decision is neither perverse nor there is no evidence. This Court is also of the considered opinion that no miscarriage of justice is caused by the said decision. 4.5. Having regard to such circumstances, more particularly from the point of the law laid down by the Hon’ble Apex Court, the order passed by the learned Principal District Judge is not suffering from any infirmity. No interference is called for. 5. Under such circumstances, the request of the present applicant for transfer of the case from the Court where it is presently listed to a different Court is rejected. 6. In so far as, the aspect of the applicant – Party-in-person having been prohibited from making oral submissions, while this Court is in broad agreement with the learned Civil Court that if the Party-in-person does not make submissions on issues which are in dispute and tries to make submission on irrelevant consideration or Party-in-person does not observe the dignity and decorum of the Court then while the learned Court below may have a reason to pass adverse orders against the party concerned but at the same time, in the considered opinion of this Court, the Court ought not to have prohibited the present Party-in-person – applicant from making oral submissions. In the considered opinion of this Court, the learned Civil Court is amply empowered to take appropriate actions against the Party-in-person - litigant concerned, if the Court is of the opinion that the concerned Party-in-person - litigant is not maintaining the dignity and decorum of the Court or that the litigant - Party-in-person is making arguments on irrelevant aspects. In the considered opinion of this Court, the learned Civil Court ought to have resorted to such inherent powers available with the Court to curtail the irrelevant submissions or to ensure the dignity of the Court is maintain at all times. 7. It also appears that in so far as the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the original plaintiffs – respondent herein to the counter claim filed by the Party-in-person in Regular Civil Suit No.72 and 73 of 1998, this Court vide order dated 08.11.2022 had permitted the Party-in-person to submit his written arguments on or before 14.11.2022 and whereas the Party-in-person has informed this Court that such written arguments have been submitted to this Court before the 14.11.2022. 8. In this view of the matter and more particularly, in view of the above discussion, the present applications i.e. Special Civil Application No. 22285 of 2022 and Special Civil Application No.21956 of 2022 are disposed of with the following directions : (i) The request to transfer the proceedings of counter claim to Regular Civil Suit Nos. 72 and 73 of 1998 and Civil Misc. Application No. 254 of 2022 to a Court different than the Court where the matter is pending i.e. to a Court other than the 22nd Additional Senior Civil Judge at Vadodara is rejected. The order passed by the learned Principal District Judge, Vadodara in Civil Misc. (Transfer) Application No. 205 of 2022 is confirmed. The learned 22nd Additional Senior Civil Judge, Vadodara, is directed to permit the present applicant – Party-in-person to make oral submissions rather the learned Civil Court is directed not to prohibit the Party-in-person from making oral submissions. The order passed by the learned Principal District Judge, Vadodara in Civil Misc. (Transfer) Application No. 205 of 2022 is confirmed. The learned 22nd Additional Senior Civil Judge, Vadodara, is directed to permit the present applicant – Party-in-person to make oral submissions rather the learned Civil Court is directed not to prohibit the Party-in-person from making oral submissions. (ii) It is clarified that in case, the Party-in-person or for that matter, any litigant is behaving in any manner which lower the dignity and decorum of Court or if the litigant - Party-in-person is making irrelevant submission, then it is always open for the concerned Court to take appropriate action against such a litigant - Party-in-person in accordance with law. (iii) Furthermore, the Party-in-person is also directed not to attempt to pressurize the Court, in any manner, whatsoever, more particularly the attempt of the Party-in-person to send e-mails to the learned Judge asking the learned Judge not to take up his case any further on account of the application - complaint filed by the Party-in-person against the Judge concerned, being highly condemnable, the Party-in-person is strictly warned not to resort such tactics. The learned Civil Court i.e. learned 22nd Additional Senior Civil Judge, Vadodara is hereby given liberty to inform the learned Registrar (General) of this Court to bring it to the notice of the Hon’ble the Chief Justice of this Court, if any such attempts are being made by the Party-in-person, which would amount to interference in the administration of justice inviting appropriate consequences. (iv) The learned 22nd Additional Civil Judge, Vadodara shall give an opportunity of hearing to the Party-in-person, in so far as, the application under order 7 Rule 11 of the C.P.C is preferred by the original plaintiffs to the counter claim preferred by the present Party-in-person to Regular Civil Suit Nos.72 and 73 of 1998, if required, the learned Civil Court is at liberty to restrict Party-in-person to a particular time limit for making his submissions. The learned Civil Court after hearing all the parties shall pass an appropriate order in the said application on its own merits without being influenced in any manner whatsoever by the observations made by this Court. The learned Civil Court after hearing all the parties shall pass an appropriate order in the said application on its own merits without being influenced in any manner whatsoever by the observations made by this Court. (v) The learned Court below shall endeavour to hear and decide all the applications pending with regard to the present litigation at the earliest keeping in mind the Civil Suits from which all these applications originate are of the year 1998 with this observations and directions Special Civil Application No. 22285 of 2022 and Special Civil Application No.21956 of 2022 stand disposed of.