Tag: #Restoration

-Report by Himanshi Chauhan

In the recent judgement of YOGESH NAVINCHANDRA RAVANI v. NANJIBHAI SAGRAMBHAI CHAUDHARY & ORS, an appeal is filed by the appellant challenging the final judgement of the High Court of Gujarat at Ahmedabad whereby the High Court passed strictures against the appellant and restored the second appeal to its original number and status.

FACTUAL BACKGROUND:

One Jesangbhai Kachrabhai Parmar (hereinafter referred to as “original plaintiff”) had filed a suit before the Additional Senior Civil Judge, Mehsana challenging the sale deed dated 14 September 2000 which was executed by Nanjibhai Sagrambhai Chaudhary in favour of Sureshbhai Hirabhai Chaudhary with respect of suit property. The said suit was dismissed by the Additional Civil Judge and this order was passed on 12 June 2008. But it is to be noted that the original plaintiff had died on 31 December 2006 i.e. during the pendency of the suit. Therefore, a further suit is presented by his legal representatives (“LRs” for short).

The first appeal was filed by the LRs of the original plaintiff including the appellant- Lalitbhai Jesangbhai Parmar who is the son of the original plaintiff. This appeal was filed before the Additional District Judge. It was dismissed vide judgment and order dated 23 July 2015.

Thereafter, a second appeal was filed in the High Court by the LRs of the original plaintiff including the appellant. In this appeal, it was displayed that all the LRs of the original plaintiff are appellants. It is to be noted that this appeal was preferred by Vitthalbhai Maganbhai Parmar who was the Power of Attorney holder of the original plaintiff. It was executed in his favour before the death of the original plaintiff. Another Power of Attorney was also executed in his favour by the appellant i.e. Lalitbhai Jesangbhai Parmar. The appellant was Power of Attorney holder only for him and not for other LRs of the original plaintiff on whose behalf the appeal was preferred. Furthermore, the Vakalatnama was not signed by other LRs of the original plaintiff.

The High Court after recognising the said discrepancy raised office objections as to whether the Vakalatnama had been signed by all the appellants or not. In spite of repeated opportunities, these objections were not removed. Therefore, the second appeal was dismissed by High Court on 27 November 2015. Thereafter the application was filed for restoration of the second appeal wherein it was stated that the Power of Attorney holder i.e. Vitthalbhai Maganbhai Parmar had informed the registry of the High Court about his inability to obtain an authority letter from all the LRs of the original plaintiff. Thereby, their transposition as defendants were requested. The HC allowed the said application and restored the second appeal.

The appellant on coming to know about the filing of the second appeal by his Power of Attorney holder cancelled the Power of Attorney through public notice because this appeal was filed without his knowledge or instruction. Furthermore, he engaged Yogesh Navinchandra Ravani, an advocate, to file a pursis for withdrawal of the second appeal. The High Court considered the said pursis and permitted the withdrawal of the second appeal.

However, even after the cancellation of Power of Attorney, Vitthalbhai Maganbhai Parmar filed a Misc. Civil Application in HC for review of its order and consequent restoration of the second appeal. He also seeks condonation of delay. The HC allowed this application and restored the second appeal to its original number and status. In addition to it, costs were imposed upon the appellant- Lalitbhai Jesangbhai Parmar and strictures were passed against the appellant- Yogesh Navinchandra Ravani for his conduct as an advocate while seeking withdrawal of the second appeal. 

Hence the present appeal was filed in the Supreme Court challenging the final judgement or order of the High Court.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the appellant submits that application filed by Vitthalbhai Maganbhai Parmar was not maintainable because the Power of Attorney executed in favour of him stood cancelled via Public Notice.

➢ The learned counsel further submits that the application for review which was filed using earlier Power of Attorney could not have been filed as on the death of the original plaintiff he had no authority to continue with the proceedings.

➢ It was further stated that once the appellant had filed an application for transposing of the other LRs as defendants and once the HC had allowed the said application, he became the dominus litis.

➢ It is submitted that the strictures passed by HC against the appellant- Yogesh Navinchandra Ravani who was only a lawyer appearing on the behalf of appellant, were totally unwarranted and uncalled for.

 ➢ Therefore, it was urged that the second appeal should not be restored and the strictures passed against the appellant- Yogesh Navinchandra Ravani should be cancelled by this court.

RESPONDENT’S CONTENTIONS:

➢ The respondent no. 5 to 7 has filed their reply stating that they had not executed any Power of Attorney in favour of said Vitthalbhai Maganbhai Parmar.

 ➢ Therefore, this reply was used by the appellants and through this they submitted that they also did not intend to challenge the order passed by the Additional District Judge.

JUDGEMENT:

The Supreme Court after considering the facts and contentions of both the parties held that the application filed by said Vitthalbhai Maganbhai Parmar was not tenable as the Power of Attorney executed in his favour by the appellant- Lalitbhai Jesangbhai Parmar stood cancelled by issuing public notice. The position of the appellant- Lalitbhai Jesangbhai Parmar being a dominus litis, has a right to withdraw the second appeal. After the withdrawal of the such appeal, an application for restoration of said appeal filed by the Power of Attorney holder whose Power of Attorney stood cancelled was not at all tenable.

The Apex Court further stated that the observations made by High Court against appellant- Yogesh were totally unwarranted and uncalled for. Thereby it was held that the decision and order passed by High Court is not sustainable in law. The same is quashed and set aside.

READ FULL JUDGEMENT: https://bit.ly/3oITUcn

-Report by ESHAN SHARMA

The current appeal has been filed by an encroacher on evacuee land of 0-14 acre-guntha of Survey No.191/2 in Godhara, Gujarat, since 1976, where he has been operating an auto shop known as Bharat Motor Garage. On October 24, 2013, the appellant’s writ suit challenging the eviction order dated 23.6.1992 was dismissed by the Learned Single Bench. The learned Division Bench sustained the order. The appellant, who is still aggrieved, has brought his case to this Court.

PETITIONER’S CONTENTION

On 16.07.1992, the appellant filed a writ suit in the Gujarat High Court in Ahmedabad, bearing Special Civil Application (SCA) No. 4700 of 1992. Along with the SCA filed by the appellant, another SCA No.2940 of 1992 brought by one Srikant Deviprasad Joshi was heard. Shri Joshi claimed ownership of the property in question based on an allocation made to him on September 20, 1972, as enemy property. On December 6, 1974, the land assigned to Shri Joshi was annulled. On July 15, 1975, the appeal against the stated order was denied. Shri Joshi then filed an SCA with the High Court, which was dismissed on October 24, 2013. The said order had finally attained finality qua Shri Joshi.

KEY HIGHLIGHTS

• On January 20, 2014, an order was issued in an intra-court appeal remanding both SCAs to the learned Single Bench. However, the application and the Letters Patent Appeal were both dismissed on March 10, 2014.
• The learned counsel argued for the appellant before this court is founded upon the policy dated 20.6.1978 for allotment of evacuee land to encroachers and the resolution dated 8.1.1980 in respect of allotment of another public land to encroachers. The appellant as an encroacher is covered by one or both of the insurance, therefore, is entitled to claim regularization of his ownership.
• On 24.10.2013, the appellant’s writ suit contesting the eviction order dated 23.6.1992 was dismissed by the Learned Single Bench. The ruling has been sustained by the learned Division Bench. The appellant is back in court, still aggrieved.

RESPONDENT’S CONTENTION

The learned counsel count on the judgments in the cases of:

Ramesh Parsram Malani v. State of Telangana

Based on a government policy decision of 20.06.1978, the displaced person-respondent is claiming allotment. The evacuee land must be given to a displaced person because it is part of the compensation pool under Section 14 of the Act and can only be allotted under Section 20. Only one displaced person can be assigned to the evacuee land. After all of the displaced people have been settled, the allocation to non-displaced people can be considered. As a result, the paragraph in the policy dated 20.6.1978 that allows evacuee land to encroachers is contrary to the Act’s design and purpose. However, any allotment made to an encroacher that has reached finality will not be reopened. As a result, an encroacher has no right to regularize evacuee land in the presence of a displaced person entitled to the allotment to achieve the Act’s goal.

COURT JUDGEMENT

“The possession of the land was taken over by the government on January 24, 2014, according to the report. The appellant’s claim now is for restoration of possession by an encroacher, which is completely untenable in above observations.”

The rule is made an outright and present appeal and the same is dismissed.