1) Mr. Jayesh A. Kotecha, learned advocate for the petitioner has drawn the attention of this court to the decision of the Supreme Court in the case of Rabindra Nath Samuel Dawson Vs. Sivakasi, AIR 1972 SC 730 for the proposition that when the objection as to the maintainability of the suit is taken at the very initial stage but is resisted by the appellant and the decision is invited, the case is not one where the appellant was prosecuting the previous proceedings bona fide. Under such circumstances, he would not be entitled to the benefit of exclusion of the period during which he was prosecuting such proceedings. Page 1 of 3
C/SCA/16831/2012 ORDER Referring to the order dated 4th October, 2010 passed by this court in Special Civil Application No.13025 of 2010, it was pointed out that this court had relegated the respondent No.1 to avail of the remedy before the Tribunal. That despite the aforesaid decision, the respondent No.1, once again, preferred another writ petition before this court being Special Civil Application No.17270 of 2010. The attention of the court was drawn to the affidavit-in-reply filed on behalf of the respondents No. 2 and 3 in the said petition, wherein it was pointed out that the petitioner (respondent No.1 herein) was trying to challenge the order dated 17th September, 2010 passed below exhibit-102 by the Board of Nominees, which ought to have been challenged before the Gujarat Co- operative Tribunal and that earlier also the said petitioner had approached this court but was directed to approach the Tribunal. It was submitted that thus, it can not be said that the respondent No.1 herein was bona fide prosecuting the proceedings before this court so as to be entitled to exclusion of the said period while considering the question of condonation of delay in preferring the appeal before the Tribunal.
appreciate the ratio of the above referred decision in proper perspective and, as such, the petition requires consideration and interim relief as prayed for deserves to be granted.
2) Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 28th January, 2013. By way of ad-interim relief, the impugned order dated 13th July, 2012 as well as further proceedings of Revision Application No.105 of 2012 pending before the Gujarat State Co- operative Tribunal, are hereby stayed (HARSHA DEVANI, J.) Vahid Page 3 of 3