1. Heard, learned advocate Mr. Aftabhusen Ansari for the applicant. Present Misc. Civil Application has been filed by the applicant seeking prayer to recall order dated 20/07/2012, passed in Misc. Civil Application No. 66 of 2012, by which, the learned advocate for the applicant was permitted to withdraw the said Misc. Civil Application No. 66 of 2012 and has further requested this Court to pass the order on merits of the case. The prayer sought for in Para 4(B) of this application is relevant, which reads as under:
Your Lordships may kindly be pleased to recall the order dated 20.07.2012 passed in Miscellaneous Civil Application No. 66 of 2012 and prays to pass order on merit of the case.
2. The order dated 20/07/2012, passed by this Court, while permitting withdrawal of the said Misc. Civil Application No. 66 of 2012 requires consideration, which is extracted below:
1. Learned advocate Mr.Arpit Patel for learned advocat Mr.Aftab Ansari for the applicant, upon instruction, seeks permission to withdraw this application and requests that the certificate issued by Dholka Court, Annexure-D, was produced before the concerned Court at Modasa and states that now appropriate execution application shall be filed before the Modasa Court and Modasa Court may be directed to hear and decide the said execution application in accordance with law.
2. Request as prayed for is granted. The instant transfer application stands disposed of with the appropriate direction to the Modasa Court to hear and decide the execution application, as expeditiously, as possible in accordance with law considering the fact that the matter is very old.
3. Learned advocate Mr. Aftabhusen Ansari has mainly argued that there was some misunderstanding between learned advocate Mr. Arpit Patel and himself (learned advocate Mr. Aftabhusen Ansari) and in fact, the applicant did not want to withdraw the said Misc. Civil Application No. 66 of 2012 and it was wrongly withdrawn by the learned advocate. It is pertinent to note that, so far as the above-referred submission is concerned, not a single word is averred by the applicant in the present Misc. Civil Application. Moreover, in this Misc. Civil Application, the applicant has specifically averred in Para 3.9 that, Miscellaneous Civil Application No. 66 of 2012 was listed before this Hon ble Court on 20.07.2012; after hearing learned advocate for the applicant, this Hon ble Court was not inclined to grant relief as prayed for and thus, learned advocate for the applicant withdrew the applicant. But, the applicant desires to contest the matter before the Higher Forum and therefore, present application for recalling of the order of withdrawal and for passing appropriate order on merits .
4. It is also pertinent to note that, to meet with his submissions referred above, the learned advocate for the applicant herein has neither filed an affidavit of learned advocate Mr. Arpit Patel, nor has he filed his own (i.e. learned advocate Mr. Aftabhusen Ansari) affidavit.
5. It is the case of the applicant that respondent was working as a Secretary in the applicant Society and during his tenure, he dishonestly and illegally obtained money of the member of the applicant Society, by committing forgery with the member of the applicant - Society prior to 1996. Thus, the money of the member of the Society, which is, as such, appears to be the Public Money, which was alleged to have been grabbed by the respondent. The applicant is the Chairman of the Vijay Credit and Supply Co-op. Society Ltd. The manner in which the recovery procedure is being handled by the applicant, it creates doubts against the said Chairman of the applicant Society. In the order dated 20/07/2012, passed in Misc. Civil Application No. 66 of 2012, it was specifically observed by this Court that, the Transfer Certificate, issued by Dholka Court, Annexure-D, was produced before the concerned Court at Modasa and further submitted that, now appropriate execution application shall be filed. Inspite of that, on specific query put by this Court to learned advocate Mr. Aftabhusen Ansari for the applicant as to on which date the said certificate at Annexure-D was produced before the Modasa Court, he has stated that Annexure-D was not produced before the Modasa Court and it is lying with the applicant. The applicant appears to have made enough efforts to make a show that he is very vigilant, prompt and keen for recovery of the alleged grabbed money but, if the entire conduct of the applicant is seen minutely, it appears that the applicant might have joined hand-in-glove with the respondent, so as to see that the said money may not be recovered from the respondent, for the reasons best known to him. Thus, in my view, the present Misc. Civil Application to recall the order dated 20/07/2012, passed in Misc. Civil Application No. 66 of 2012 deserves to be dismissed and accordingly, dismissed, in limine. As the applicant has withdrawn the Misc. Civil Application No. 66 of 2012, further request to pass the order on merits of the said Misc. Civil Application is also hereby rejected.
[ G. B. SHAH, J. ] hiren Page 5 of 5