MANJULABEN MUKESHBHAI SOLANKI Vs. MUKESHBHAI BECHARBHAI SOLANKI

JUDGEMENT

(1.) The present application is filed for the purpose of seeking the following reliefs :? "6(a) Be pleased to admit and allow this application and be pleased to set and quash aside the order obtained by respondent advocate misleading the Hon'ble High Court on dated 19.02.2019 in C.A. No. 1 of 2019 in F.A. No. 1960 of 2017 of Mark?B

(2.) The background of this application is that original First Appeal No. 1960 of 2017 came to be dismissed for default by order dated 04.02.2019. As a result of this, for seeking the restoration of the said matter, Civil Application No. 1 of 2019 came to be filed, wherein after hearing the learned advocate for the applicant, the Misc. Civil Application No. 1 of 2019 came to be allowed by restoring original First Appeal No. 1960 of 2017. Being aggrieved by the said restoration order of the main proceedings, initially, the learned advocate appearing for the applicant - original respondent himself became an applicant and submitted an application in the name of himself i.e. Govindbhai J. Chuvalia (6336) and has surprisingly joined as learned advocate for the applicant as well, but later on, it appears that the learned advocate for the applicant has given a fresh memo by correcting the cause title. The substance in which, the application is submitted is that learned advocate Mr. Ansari appearing for the original appellant has not communicated to learned advocate appearing for the applicant - original respondent and has also not supplied the copy though has undertaken. It has been asserted by the learned advocate for the applicant that he had no registered clerk and he himself is doing all the work, like filing, listing, applying for certified copy personally, and by making a false endorsement on Misc. Civil Application No. 1 of 2019, an order is obtained of restoration. According to learned advocate, a false submission is made as under :? "Copy served, but refused to accept by G.J. Chuvalia, A.A. Ansari, 18/2/2019."

(3.) To meet with this submissions made by the learned advocate for the applicant, learned Senior Advocate Mr. I.H. Syed appearing with Mr. Ansari, learned advocate for the original appellant has vehemently opposed to the submissions made of such a nature and has contended that neither there is any misrepresentation nor any malpractice of any nature is committed by the learned advocate representing the original appellant. It is only with a view to hide his negligence and to justify, this kind of allegations are made which are thoroughly uncalled for. It has been submitted by learned Senior Advocate Mr. Syed that there is a clear attempt made by learned advocate Mr. Ansari to inform the learned advocate for the applicant, but his phone was switched off. Resultantly, the SMS has also been sent to the learned advocate for the applicant, but as stated, the learned advocate for the applicant was not in the campus of the High Court itself, he could not make proper arrangement and for that, the fault is tried to be shifted upon the learned advocate appearing for the original appellant. According to learned Senior Advocate Mr. Syed, this is thoroughly uncalled for, on the contrary, it is the act to undermine the dignity of learned advocate for the appellant. Hence, by refuting the allegations levelled upon the learned advocate appearing for the original appellant, a request is made to dismiss the application. It has been submitted that this kind of gross submissions on this issue of restoration should not have been submitted by learned advocate for the applicant which are thoroughly uncalled for. On the contrary, if the call details of the clerk who called on 18.02.2019 if to be seen, which are rightly available to the learned advocate appearing for the original appellant, it would be quite clear that there was absolutely, no interference of any nature to obtain any ex?parte order. It has further been submitted that the first appeal was not dismissed on account of any lack of merit, it is merely dismissed for default and in a routine manner, the restoration is to take place under the normal circumstance. It has been submitted that there was a categorical assertion made and assurance was given to remain present on the next hearing, and relying upon such words if restoration has taken place, the applicant is not prejudice in any way. On the contrary, the application has to stand on his own merit instead of taking undue advantage of fault on the part of the lawyer, who could not remain present on account of unavoidable circumstances, The costs which has been imposed upon is also deposited by the learned advocate for the original appellant. As a result of this, there is hardly any reason for making such kind of serious allegations against the learned advocate for the original appellant. Learned Senior Advocate Mr. Syed has contended that inter se ego clash or some bias or prejudice between the learned advocates, the litigant may not be allowed to suffer. Resultantly, there is hardly any merit in the application which deserves to be dismissed. Learned Senior Advocate Mr. Syed has further contended that there is a clear bias reflecting even from drafting of the application by the learned advocate for the applicant since, in first point of time, surprisingly and shockingly the learned advocate for the applicant himself in his name filed the application by becoming the applicant, and has joined the learned advocate as applicant. Since the title was not tallying the learned advocate for the applicant was constrained to submit an amendment by submitting a fresh memo of Civil Application, but in this fresh memo of Civil Application, reasons which are assigned are shocking and this clear bias which is reflecting on the application itself, the litigant being appellant of the main appeal cannot be allowed to suffer. This being the position, in the larger interest, the application be dismissed and the applicant be permitted to contest the main appeal on merit instead of finding out this infirmity and taking disadvantage of it. Learned Senior Advocate Mr. Syed has as such requested that there is neither any mala fide nor any infirmity, nor any mischief is played which warrant entertainment of this application. On the contrary, learned advocate for the applicant has too much personalized the issue, which is thoroughly uncalled for. Resultantly, the original order of restoration dated 19.02.2019 does not require any interference.