Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2023
(Arising out of SLP (C) Nos. 1394313944 OF 2020)
YOGESH NAVINCHANDRA RAVANI ...APPELLANT(S)
VERSUS
NANJIBHAI SAGRAMBHAI
CHAUDHARY & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NOS. OF 2023
(Arising out of SLP (C) Nos. 1307913080 OF 2020)
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
2. The appeals arising out of SLP(C) Nos. 1394313944 of
2020, filed by Yogesh Navinchandra Ravani, challenge the
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final judgment and order dated 14 February 2020, passed
Signature Not Verified
Digitally signed by
Deepak Singh
Date: 2023.05.22
15:56:44 IST
Reason:
by the High Court of Gujarat at Ahmedabad in Civil
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Application (for condonation of delay) No. 2 of 2018 in
R/Second Appeal No. 238 of 2015 with Misc. Civil
Application (for Review) No. 1 of 2018 in R/Second Appeal
No. 238 of 2015, whereby the High Court passed strictures
against the appellantYogesh Navinchandra Ravani and
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recalled its order dated 11 September 2017, thereby
restoring the aforesaid Second Appeal to its original number
and status.
3. Aggrieved by the adverse remarks made by the High
Court in its judgment, appellant Yogesh Navinchandra
Ravani has preferred these appeals so as to have those
remarks expunged.
4. Appeals arising out of SLP(C) Nos. 1307913080 of 2020
have been filed by Lalitbhai Jesangbhai Parmar against the
same impugned judgment and order as above, albeit the
challenge here is against the restoration of Second Appeal to
its original number and status and the costs imposed upon
the appellantLalitbhai Jesangbhai Parmar.
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5. The facts, in brief, giving rise to the present appeals are
as under :
One Jesangbhai Kachrabhai Parmar (hereinafter
5.1
referred to as “original plaintiff”) had instituted a suit,
bearing Regular Civil Suit No. 92 of 2015 (Old No.165/2001),
before the Additional Senior Civil Judge, Mehsana,
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challenging the sale deed dated 14 September 2000
executed by one Nanjibhai Sagrambhai Chaudhary in favour
of one Sureshbhai Hirabhai Chaudhary with respect to the
suit property.
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5.2 The said suit came to be dismissed by the 7 Additional
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Civil Judge, Mehsana, vide judgment and decree dated 12
June 2008. It is pertinent to note that the original plaintiff
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had expired on 31 December 2006, i.e. during the pendency
of the said suit and his Legal Representatives (“LRs” for
short) had been brought on record in the said proceedings.
5.3 A first appeal, being Regular Civil Appeal No. 77 of
2008, was preferred by the LRs of the original plaintiff
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including the appellant Lalitbhai Jesangbhai Parmar, being
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the son of the original plaintiff before the 4 Additional
District Judge, Mehsana, which too came to be dismissed,
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vide judgment and order dated 23 July 2015.
Thereafter, a Second Appeal, being Regular Second
5.4
Appeal No. 238 of 2015 was preferred before the High Court
by the LRs of the original plaintiff, including the appellant
Lalitbhai Jesangbhai Parmar. It is pertinent to note that the
Second Appeal, which displayed all the LRs of the plaintiff as
appellants, was preferred by one Vitthalbhai Maganbhai
Parmar, who was the Power of Attorney holder under a power
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of attorney executed by the original plaintiff on 4 January
2001, prior to his death. Another Power of Attorney dated
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20 November 2012, had also been executed in his favour by
the appellantLalitbhai Jesangbhai Parmar. Thus, Vitthalbhai
Maganbhai Parmar was the power of attorney holder only for
the appellant Lalitbhai Jesangbhai Parmar, and not for the
other LRs of the original plaintiff on whose behalf the
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aforesaid Second Appeal had been preferred. Crucially, the
other LRs of the original plaintiff had not signed any
Vakalatnama to prefer the aforesaid Second Appeal.
5.5 The registry of the High Court, recognizing the
aforementioned discrepancy, raised office objections as to
whether the Vakalatnama had been signed by all the
appellants or not.
5.6 In spite of repeated opportunities, these objections were
not removed, and the aforesaid Second Appeal came to be
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dismissed on 27 November 2015, for nonremoval of office
objections. Thereafter, an application being Miscellaneous
Civil Application No. 894 of 2016 for restoration of the
Second Appeal was filed 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 authority letter from all the LRs of the deceased
original plaintiff, thereby requesting their transposition as
defendants.
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5.7 The High Court, vide Order dated 9 March 2016,
allowed the said application and restored the Second Appeal
to its original status.
5.8 Subsequently, the Second Appeal came to be admitted
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by the High Court, vide its order dated 21 April 2016, and
the parties were directed to maintain status quo . The crux of
the dispute begins hereinafter.
5.9 The appellantLalitbhai Jesangbhai Parmar, on coming
to know about the filing of the aforesaid Second Appeal by
his Power of Attorney holderVithalbhai, cancelled the Power
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of Attorney, vide Public Notice dated 20 June 2017, since
the aforesaid Second Appeal had been preferred without his
knowledge or instruction. Pursuant to the cancellation of the
Power of Attorney, appellantLalitbhai Jesangbhai Parmar
engaged appellantYogesh Navinchandra Ravani, an
advocate, to file a for withdrawal of the Second Appeal
pursis
and allied civil applications.
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5.10 The High Court, vide order dated 11 September 2017,
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took on record the aforesaid pursis and permitted withdrawal
of the Second Appeal.
5.11 However, even after cancellation of the Power of
Attorney executed in favour of Vitthalbhai Maganbhai
Parmar, he filed Misc. Civil Application No. 1 of 2018 before
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the High Court for review of its order dated 11 September
2017 and consequent restoration of the Second Appeal, as
well as Misc. Civil Application No. 2 of 2018 seeking
condonation of delay.
5.12 The High Court, vide impugned judgment and order
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dated 14 February 2020, allowed the aforesaid applications,
thereby restoring the Second Appeal to its original number
and status. Additionally, costs were imposed upon the
appellant– Lalitbhai Jesangbhai Parmar and strictures were
passed against the appellantYogesh Navinchandra Ravani
for his conduct as advocate of Lalitbhai Jesangbhai Parmar,
while seeking withdrawal of the Second Appeal. Hence, the
present appeals.
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6. We have heard Mr. Harin Raval, learned Senior Counsel
appearing on behalf of the appellants and Ms. Divya Anand
and Mr. Ankit Anandraj Shah, learned counsel appearing on
behalf of the respondents.
7. Mr. Raval submits that the very application for review of
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the order dated 11 September 2017, at the behest of the so
called Power of Attorney Holder Vitthalbhai Maganbhai
Parmar, was not maintainable. It is submitted that the
Power of Attorney in favour of the said Vitthalbhai
Maganbhai Parmar stood cancelled vide Public Notice dated
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20 June, 2017. It is submitted that the application for
review, filed using the earlier Power of Attorney of original
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plaintiff dated 4 January 2001 could not have been filed,
inasmuch as, on the death of the original plaintiff, the Power
of Attorney Holder Vitthalbhai Maganbhai Parmar had no
authority to continue with the proceedings. Learned counsel
submitted that unless a fresh Power of Attorney by the legal
heirs of the deceased original plaintiff was executed, he could
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not have continued with the proceedings. It is further
submitted that once the appellantLalitbhai Jesangbhai
Parmar had filed an application for transposing of the other
legal heirs of the deceased original plaintiff as defendants
and once the High Court, having allowed the said application
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vide Order dated 9 March 2016, he became the dominus
litis .
It is submitted that the strictures passed by the High
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Court against the appellantYogesh Navinchandra Ravani,
who was only a lawyer appearing on behalf of the appellant
Lalitbhai Jesangbhai Parmar, were totally unwarranted and
uncalled for.
The respondent Nos. 5 to 7 have filed their reply, stating
9.
therein that they had not executed any Power of Attorney in
favour of said Vitthalbhai Maganbhai Parmar. It is submitted
that they also did not intend to challenge the Order dated
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23 July 2015, passed by the 4 Additional District Judge,
Mehsana, dismissing the First Appeal, viz. Regular Civil
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Appeal No.77 of 2008 and, as such, the application filed by
said Vitthalbhai Maganbhai Parmar for restoration of the
Second Appeal was not tenable.
10. From the perusal of the record, it would reveal that
Second Appeal No.238 of 2015 was filed on behalf of all the
legal heirs of the original plaintiff by Vitthalbhai Maganbhai
Parmar, claiming to be the Power of Attorney Holder under
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Power of Attorney executed by the original plaintiff on 4
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January 2001. Another Power of Attorney dated 20
November 2012 was executed in favour of said Vitthalbhai
Maganbhai Parmar by the appellantLalitbhai Jesangbhai
Parmar. It is, thus, clear that after the death of the original
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plaintiff on 31 December 2006, the said Power of Attorney
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dated 4 January 2001 executed by him in favour of
Vitthalbhai Maganbhai Parmar ceased to have any effect.
Though another Power of Attorney was executed in favour of
said Vitthalbhai Maganbhai Parmar, it was executed only by
the appellantLalitbhai Jesangbhai Parmar. As such,
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Vitthalbhai Maganbhai Parmar had no right to file appeal on
behalf of the other legal heirs.
11. The Registry of the High Court, noticing that the
Vakalatnama was not signed by all the appellants, had raised
office objections. On nonremoval of the officeobjections, the
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Second Appeal came to be dismissed on 27 November 2015.
Thereafter, Miscellaneous Civil Application No. 894 of 2016
came to be filed for restoration of the Second Appeal. The
said application also came to be filed by said Vitthalbhai
Maganbhai Parmar. It will be relevant to note the averments
made by said Vitthalbhai Maganbhai Parmar in the said
application, which read thus:
“3. The applicants state that an office
objection was raised by the Registry as
regards nonproduction of power of
attorney or authority letter on behalf of all
the heirs of deceased plaintiff authorizing
the deponent to prefer the second appeal.
The applicant state that the deponent had
informed the Registry about inability to
obtain the authority letter of all the heirs of
the deceased plaintiff and requested to
permit their transposition as defendants.
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The applicants submit that the applicants
were under a bona fide impression that the
same shall be allowed and the appeal shall
be listed by the Registry before the Hon’ble
Court for admission hearing in due course.
…”
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12. It appears that the High Court, vide Order dated 9
March 2016, restored the Second Appeal to its original
status.
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13. It appears that, vide the Office Endorsement dated 13
April 2016, the draft amendment and fresh title with names
were accepted and, as such, office objection came to be
removed.
It would further appear from the record that an
14.
application for Draft Amendment came to be filed by
Nanavati & Company, Advocate for the appellants in Second
Appeal No.238 of 2015. It will be relevant to refer to the
same, which reads thus:
“The applicant prays to make
amendment in the memorandum of
petition in the above matter. The
applicant submits that due to bona fide
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mistake the names of all the plaintiffs
were mentioned in the title (appellant
side) in the above mentioned second
appeal. The applicant submits that only
one of the legal heirsLalitbhai
Jesangbhai Parmar through Power of
Attorney Vitthalbhai Maganbhai Parmar
is desirous of pursuing the legal remedy.
Therefore, I humbly request this Hon’ble
Court to substitute the title of the
memorandum of appeal with a new title
provided herewith.”
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Subsequently, a notorised pursis dated 19 July 2017
15.
came to be filed by appellantLalitbhai Jesangbhai Parmar,
stating therein that, on account of transposition of the other
appellants, he was the sole appellant and he wanted to
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withdraw the Second Appeal. As such, vide order dated 11
September 2017, the High Court permitted the withdrawal of
the Second Appeal, and the Second Appeal stood dismissed
as withdrawn.
16. It could thus be seen that, since Vitthalbhai Maganbhai
Parmar was having Power of Attorney on behalf of the
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appellantLalitbhai Jesangbhai Parmar, the appeal could
have been filed only on his behalf. AppellantLalitbhai
Jesangbhai Parmar had cancelled the Power of Attorney
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issued in favour of Vitthalbhai Maganbhai Parmar on 20
June 2017, by issuing a Public Notice in daily newspaper,
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namely, ‘Sandesh’ on 21 June, 2017. As such, Vitthalbhai
Maganbhai Parmar had no authority in law to continue with
the Second Appeal.
17. We are, therefore, of the considered view that the Civil
Application No.1 of 2018 (for restoration) filed by said
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Vitthalbhai Maganbhai Parmar on 11 October 2018 itself
was not tenable, inasmuch as the Power of Attorney executed
in his favour by appellantLalitbhai Jesangbhai Parmar on
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20 November 2012 stood subsequently cancelled on 20
June 2017 by a issuing Public Notice.
We, therefore, find that, by the impugned judgment, an
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anomalous situation has arisen where the appellantLalitbhai
Jesangbhai Parmar, who does not desire to prosecute the
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Second Appeal, would be forced to pursue his appeal.
Similarly, the legal heirs of the deceased original plaintiff,
who also do not want to continue with the proceedings,
would be forced to continue with the litigation.
As discussed herein above, after the transposition of the
19.
other LRs was allowed, appellantLalitbhai Jesangbhai
Parmar was the sole appellant. As such, in his position as
dominus litis , he was very well within his right to withdraw
the Second Appeal. After the withdrawal of the Second
Appeal by appellantLalitbhai Jesangbhai Parmar, an
application for restoration, at the behest of the Power of
Attorney Holder, whose Power of Attorney stood cancelled,
was not at all tenable.
In any case, we find that the observations made by the
20.
High Court against appellantYogesh were totally
unwarranted and uncalled for.
21. In this view of the matter, we find that the impugned
judgment and order passed by the High Court is not
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sustainable in law. The same is quashed and aside.
22. In the result, both the appeals are allowed.
23. For the reasons stated, I.A. No.129619 of 2020 for
deletion of respondent No.4 is allowed. All pending
applications shall stand disposed of. No costs.
…….........................J.
[B.R. GAVAI]
…….........................J.
[VIKRAM NATH]
NEW DELHI;
APRIL 25, 2023
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