ZAVERCHAND PRAGJIBHAI VEKARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The prayer has been made to recall the order dtd. 08/01/2024 passed in Second Appeal No.377 of 2018.

(2.) Mr.Kishan y. Dave, learned advocate for the applicant herein submitted that the applicant having reached the age of 85 years was not in a stage of continuing with the litigation and hence proposed to consider the appeal at the rate of interest of 12% per annum, though 18% rate of interest per annum has been granted by both the courts. Mr.Dave, learned advocate, thus, stated that it was only with a view to put an end to the litigation, as age of the applicant would not permit him to bear further litigation, bearing in mind that he would receive the fruits of the judgments of both the courts at the earliest. Mr.Dave, learned advocate, thus stated that on that basis, this Court has considered to curtail the litigation and had passed the order, Mr.Dave, learned advocate stated that reliance was placed on last resolution dtd. 25/08/2004 which was prior to Special Civil Suit No.5 of 2006. Mr.Dave, learned advocate stated that such resolution was neither relied upon before the court of first instance nor before the appellate court and both the courts considered 18% rate of interest per annum, while the resolution 25/08/2004 grants only 6% rate of interest per annum. Hence, the present prayer has been made to recall the order since decreetal amount bears the interest of 18% per annum and the resolution dtd. 25/08/2004 would adversly effect the applicant as an appellant as the calculation on 6% rate of interest per annum would effect the right of the applicant, the interest which has been ordered by both the courts of 18%, would get reduced to 6% interest per annum without the resolution being proved before the trial court and the appellate court. Mr.Dave, learned advocate further stated that this Court cannot rely on the resolution dtd. 25/08/2004 as the procedure for proving the same has not been followed. Mr.Dave, learned advocate also stated that this Court has also observed in para-16 of the order dtd. 08/01/2024 that no substantial questions to be raised in the Second Appeal as the appeal was not to be admitted and thus, stated that interest of 18% which has been decided by both the courts should not be altered.

(3.) Ms. Tanushree Shrimal, learned AGP for the opponent State has relied upon the affidavit filed by the State and submitted that the application for recalling the order would not be maintainable in view of the principle of waiver and estoppel. Learned AGP submitted that the applicant's advocate was present before the court in the main hearing and was aware of the facts of the case and has not raised any objection during the hearing. Thus, failure to raise the objection would amount to waiver of his right and therefore, is es-topped from raising the contention by way of filing the present application. Learned AGP further submitted that the applicant has not provided valid ground for recalling the order, as established by the legal proceedings set by the Hon'ble Supreme Court in case of Budhia Swain and others vs. Gopinath Deb and Others reported in (1999) 4 SCC 396. Learned AGP further submitted that once an order has been passed, the matter under recall would lack jurisdiction and on very limited scope of Sec. 151 of Civil Procedure Code where no other remedy is available, the court can entertain the inherent jurisdiction under Sec. 151 of the Civil Procedure Code, and thus submitted that in case of Ramprakash vs. Gopikrishnan reported in (2013) 11 SCC 296, the Apex Court clarifies the law for the use of power under Sec. 151 of the Civil Procedure Code. Thus, learned AGP submits that Sec. 151 is not a substantive provision, hence, the relief prayed in the present matter should not be considered to have been invoked under the provision of Sec. 151 of the Civil Procedure Code and, thus, submitted that inherent powers cannot be used to reopen the settled matters. Learned AGP, hence, further submitted that even if wrong conclusion is arrived at by the Court, the parties are bound by the same and the only recourse available would be to challenge the order before the higher forum and hence, submitted that this Court lacks jurisdiction under Sec. 151 of the Civil Procedure Code to entertain the application and submitted to out right reject the same.