VISNAGAR MUNICIPALITY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . It is not an unusual practice in Courts to entertain a request made by a learned counsel to call for the papers of any case from the Registry even when it is not on the Board for passing appropriate orders exparte or otherwise to take up the matter in presence of both the parties, if the situation so warrants or it is shown that a matter is sought to be withdrawn or an order agreeable to both the sides or a consent order is required to be passed. However, the facts of the present case do teach a lesson to avoid such a practice and further that the Court shuld not be unassuming while entertaining such requests and the same should be entertained after stricter scrutiny and screening and that too with extra care and caution.

(2.) In the instant case, through this Misc. Civil Application an order passed by this court in the Special Civil Application No.5334/97 on 22.6.99 whereby the Special Civil Application was dismissed as withdrawn, has been sought to be recalled. The aforesaid order dt.22.6.99 dismissing the main Special Civil Application as withdrawn was passed when Civil Application No.5625/99 in Special Civil Application No.5334/97 was moved praying for the withdrawal of the main Special Civil Application. The Civil Application No.5625/99 seeking the withdrawl of the Special Civil Application was not on the board but a mention was made by learned counsel Mr.B.R.Kyada before this Court in presence of the other side on 21.6.99 to call for the papers from the Registry. The request appeared to be innocuous as the prayer was made that the petition was sought to be withdrawn and the other side has no objection to it. The papers were, therefore, called from the Registry but on that date the orders could not be passed as the Court's time was over and, therefore, on a mention being made again on 22.6.99 by Mr.Kyada, the order was passed dismissing the main Special Civil Application as withdrawn. The order, as was passed on 22.6.99, is reproduced as under:-

(3.) Thereafter, the present Misc. Civil Application was filed before this court on 29.6.99 with the prayer that the order dt.22.6.99 passed in the main Special Civil Application be recalled and that pending the admission and final disposal of the petition, be pleased to stay the implementation, execution and operation of the impugned order passed by the State Government dt.28.6.99 directing the Sub-Divisional Officer, Mehsana Sub-Division to take over the charge of the Municipality with the further direction restraining the respondents , their agents, servants, including the Sub-Divisional Officer, Mehsana Sub-Division, Mehsana from interfering and/or restraining the applicants and the Chair Person from functioning as the Chair Person and Councillor of the Municipality and all other Councillors. This Application came up before the court on 5.7.99 and it was submitted that the main Special Civil Application had been surreptitiously withdrawn and, therefore, the following order was passed on 5.7.99 and the matter was fixed for 9.7.99: