Gujarat High Court
Shahjahan Sayed Ali Mulla vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.MA/8571/2025 ORDER DATED: 02/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (RECALL) NO. 8571 of 2025
In R/SPECIAL CRIMINAL APPLICATION NO. 30 of 2025
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SHAHJAHAN SAYED ALI MULLA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. GHANSHYAM UPADHYAY FOR MR SMIT P VAGHELA(10653) for the
Applicant(s) No. 1
MR. JAY MEHTA, APP for the Respondent(s) No. 1 - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/05/2025
ORAL ORDER
1. The present application is filed for seeking the
following reliefs:
“a) that this Hon’ble Court may be pleased to recall its
order dated 30.01.2025, passed in Special Criminal
Application No.30/2025 and decide the Special Criminal
Application No.30/2025 afresh in view of the law laid down
by the Hon’ble Court in the matter of Bijay Agarwal V/s.
M/s. Midline-2024 SSC OnLine SC 494:
b) that any such other and further reliefs as the nature
and circumstances of the case may require, be granted;”
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2. Heard Mr. Ghanshyam Upadhyay, learned advocate
appearing on behalf of Mr. Smit Vaghela, learned
advocate for the applicant and Mr. Jay Mehta, learned
APP for the respondent – State.
3.1 It is relevant to note that in Special Criminal
Application No. 30 of 2025, this Court has given full-
fledged opportunity of hearing to Mr. Ghanshyam
Upadhyay, learned advocate for the applicant, and at
least on two occasions, the matter was heard at length
and thereafter, the written submissions are also filed by
the respective parties, thereafter, this Court, after
considering the necessary materials available on the
record in best possible manner, has decided the matter
in accordance with law by considering the relevant
aspects of the matter.
3.2 The present application is filed for recalling of the
order dated 30.01.2025 passed in Special Criminal
Application No.30 of 2025. The Court has asked to Mr.
Upadhyay, learned advocate for making necessary
submissions by making attempt to satisfy that the
present application with such prayer can be entertained
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and can be proceeded for fresh consideration in
accordance with law, more particularly, considering the
fact that order which is now sought to be recalled was
challenged before the Hon’ble Supreme Court by way of
Special Leave to Appeal (Crl.) No(s).2379-2382 of 2025,
whereby the Hon’ble Apex Court has vide order dated
18.02.2025 has passed the following order:
“Heard the learned counsel appearing for the
petitioner.
We do not find any ground to interfere with the
impugned order passed by the High Court. However, the
petitioner is granted a period of three months to comply
with the impugned order.
There shall be stay of the warrant issued against the
petitioner for such period of three months.
The Special Leave Petitions are, accordingly, disposed
of.
Pending application(s), if any, shall stand disposed of.”
3.3 Therefore, considering this aspect, when the Hon’ble
Apex Court has not entertained the Special Leave to
Appeal of the present petitioner at the admission stage
itself, however, the Hon’ble Apex Court has only granted
time to the petitioner to comply with the order passed
by the learned Sessions Court within a period of three
months from the date of order i.e. 18.02.2025 passed by
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the Hon’ble Apex Court.
4.1 Pursuant to the query raised by this Court, Mr.
Ghanshyam Upadhyay, learned advocate appearing on
behalf of Mr. Smit Vaghela, learned advocate for the
applicant has drawn the attention of this Court that this
Court has not considered various submissions made at
the bar at the relevant point of time i.e. on 30.01.2025
while passing the impugned order in Special Criminal
Application No.30 of 2025 and, therefore, such application
for recall is maintainable. He has strongly relied on two
judgments of the Hon’ble Apex Court in the cases of (i)
Asit Kumar Kar vs. State of West Bengal and Others
reported in (2009) 2 SCC 703, more particularly, paras 6
and 7 are relevant, (ii) Vishnu Agarwal vs. State of
Uttar Pradesh and Another reported in (2011) 14 SCC
813, more particularly, paras 6 and 7 are relevant paras.
He has tried to rely on the various judgments of
Karnataka High Court and other High Courts on same
point, however, he has not supplied copy of any such
judgment.
4.2 Furthermore, he has submitted that when the
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Hon’ble Supreme Court has dismissed the Special Leave
to Appeal (Crl.) No(s).2379-2382 of 2025 in limine (at the
admission stage such without discussing the merits of
the matter) then the application for recall is not barred
and can be maintainable. He has further submitted that
he is not seeking any review of the order but he is
seeking recall of the order and, therefore, he has
submitted that when the Court has passed the order on
30.01.2025 in Special Criminal Application No.30 of 2025,
the Court has not taken into consideration the important
aspects of the matter and, therefore, the impugned order
is required to be recalled as it will be in the interest of
the parties as applicant can also get fair opportunity.
5. Learned APP Mr. Jay Mehta for the respondent –
State has submitted that there is no apparent error in
the impugned order dated 30.01.2025 passed by this
Court in Special Criminal Application No.30 of 2025,
which is passed after detailed hearing of the matter and
though the State is formal party but with a view to
assist Court on factual aspects, he has submitted that
the applicant is owing the liability of pay more than
Rs.9 crores pursuant to the proceeding filed under
Section 138 of the Negotiable Instruments Act and
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though the learned trial court has passed the order on
03.02.2024, which was sought to be challenged before the
learned lower appellate court and, as lower appellate
court has imposed condition in view of provisions of
Section 143 read with Section 148 of the Negotiable
Instruments Act. Thereafter also, the proceedings by way
of Special Criminal Application was filed before this
Court by not depositing single penny and, therefore, the
conduct of the petitioner is also required to be taken
note for the same and, hence, considering the intention
of the party, who is filing the present application is
nothing but an attempt to delay the compliance of the
order passed by lower appellate court. He has further
submitted that when the Hon’ble Supreme Court has also
dismissed Special Leave to Appeal whereby the impugned
order passed by this Court in Special Criminal
Application was challenged, which is now sought to be
recalled by way of this application, and therefore, there
is no substance in the present application, which is filed
with malafide intention and, therefore, the present
application is required to be dismissed with appropriate
observations.
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6.1 Considering the rival submissions made at the bar
prime facie, this court is of the opinion that applicant is
filing one proceeding after another with a view to
dragging the proceedings pending before lower court
without paying any amount as directed by the learned
Court, which shows that the applicant is not pursuing
the legal proceedings bonafidely and is also trying to
delay the proceedings with some ulterior motive to
escape from the liability to pay the amount, which is
directed by the learned lower appellate court at the time
of consideration of the appeal, more particularly, when
the trial court, after full-fledged trial, has also passed
the necessary order by convicting the accused persons
and thereafter, when the present petitioner has preferred
the appeal, there also, there is some direction given by
the lower appellate court, which was challenged by way
of Special Criminal Application No.30 of 2025 before this
Court. This Court has, after hearing the concerned
parties and after giving full-fledged opportunity to the
present petitioner, even by permitting him to filing
written submission, has decided the petition by way of
impugned judgment dated 30.01.2025. This Court has
considered various aspects of the matter in detailed
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discussion in the judgment which runs into 31 pages.
6.2 It is also noteworthy to note that instead of filing
the present application immediately after order passed on
30.01.2025 by this Court, if at all applicant is of the
opinion that there is some scope of recalling of the order
on any grounds now agitated in the present application,
he could have availed immediately after the
pronouncement of the judgment by this Court in Special
Criminal Application No.30 of 2025 passed on 30.01.2025.
Instead of that, the petitioner has first exhausted his
remedy by way of approaching the Hon’ble Apex Court
by way of approaching the Hon’ble Apex Court by
challenging the impugned order dated 30.01.2025 passed
by this Court in Special Criminal Application No.30 of
2025, which is decided by the Hon’ble Apex Court at the
admission stage by passing order in Special Leave to
Appeal (Crl.) No(s).2379-2382 of 2025 on 18.02.2025. The
said order is once again reproduced for ready reference:
“Heard the learned counsel appearing for the
petitioner.
We do not find any ground to interfere with the
impugned order passed by the High Court. However, thePage 8 of 22
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petitioner is granted a period of three months to comply
with the impugned order.
There shall be stay of the warrant issued against the
petitioner for such period of three months.
The Special Leave Petitions are, accordingly, disposed
of.
Pending application(s), if any, shall stand disposed of.”
6.3 From bare perusal of the order, even the Supreme
Court is convinced that there is no infirmity found in
the order passed by this Court on 30.01.2025 and
therefore, Hon’ble Supreme Court has dismissed the
Special Leave to Appeal and with a view to giving some
time to the present petitioner, the Hon’ble Apex Court
has directed the present petitioner to comply the order
passed by the lower court within three months from the
date of the order i.e. 18.02.2025 passed by Hon’ble Apex
Court. Instead of complying the said order, the present
application is filed for recalling of the impugned order
though no case is made out for recalling of order.
6.4 Now, we must consider the provisions of Section
362 of the Criminal Procedure Code, which is pari-
materia of Section 403 of Bharatiya Nagarik Suraksha
Sanhita, 2023, which read as under:
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“Section 362 in The Code of Criminal Procedure, 1973:-
362. Court not to alter judgment.
– Save as otherwise provided by this Code or by any other
law for the time being in force, no Court, when it has
signed its judgment or final order disposing of a case, shall
alter or review the same except to correct a clerical or
arithmetical error.
Section 403 in Bharatiya Nagarik Suraksha Sanhita, 2023:-
403. Court not to alter judgment.
Save as otherwise provided by this Sanhita or by any other
law for the time being in force, no Court, when it has
signed its judgment or final order disposing of a case, shall
alter or review the same except to correct a clerical or
arithmetical error.”
6.5 On bare reading of the said section, the present
application is found misconceived and with a view to
misuse the process of law though same is not
maintainable in the eyes of law.
6.6.1 Moreover, considering the judgment relied upon
by learned advocate Mr. Upadhyay in support of his
submissions in the case of Asit Kumar Kar (supra), more
particularly, paras 6 and 7 are relevant, as under:
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“6. There is a distinction between a petition under
Article 32, a review petition and a recall petition. While in
a review petition the Court considers on merits where there
is an error apparent on the face of the record, in a recall
petition the Court does not go into the merits but simply
recalls an order which was passed without giving an
opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a
recall petition because the order passed in the decision in
All Bengal Licensees Association v. Raghabendra Singh &
Ors. [2007 (11) SCC 374] cancelling certain licences was
passed without giving opportunity of hearing to the persons
who had been granted licences. In these circumstances, we
recall the directions in paragraph 40 of the aforesaid
judgment. However, if anybody has a grievance against the
grant of licences or in the policy of the State Government,
he will be at liberty to challenge it in appropriate
proceedings before the appropriate Court. The writ petitions
are disposed of with these directions.”
Even considering facts of this judgment, where the
recall application is filed, which is filed in the petition
under Article 32 of the Constitution of India, whereby
the Hon’ble Supreme Court has observed that there is
distinction between the review and recall petition. The
Court has also observed that while in a review petition
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the Court considers on merits where there is an error
apparent on the face of the record, which is not the case
of the present petitioner. The Supreme Court has also
observed that in a recall petition, the Court does not go
into the merits but simply recalls an order, which was
passed without giving an opportunity hearing to an
affected party. Here, it is admitted position that the
petition is filed by the present petitioner i.e. Special
Criminal Application No.30 of 2025, which is argued at
length by the present petitioner and not only that, the
petitioner has also filed written submission and,
therefore, it cannot be said that the petitioner was not
heard and, therefore, on that count also, the recall
application is not required to be entertained and the
judgment of the Hon’ble Apex Court is not coming to
rescue of the present petitioner.
6.6.2 It is also relevant to refer the judgment relied
by learned advocate for the applicant in the case of
Vishnu Agarwal (supra), more particularly, paras 6 and 7
are relevant, as under:
“6. In our opinion, Section 362 cannot be considered in a
rigid and over technical manner to defeat the ends of
justice. As Brahaspati has observed :
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“Kevalam Shastram Ashritya Na Kartavyo Vinirnayah
Yuktiheeney Vichare tu Dharmahaani Prajayate”
which means:
“The Court should not give its decision based only on
the letter of the law.
For if the decision is wholly unreasonable, injustice
will follow.”
7. Apart from the above, we are of the opinion that the
application filed by the respondent was an application for
recall of the Order dated 2.9.2003 and not for review. In
Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR
469, this Court made a distinction between recall and
review which is as under:-
6. “There is a distinction between …… a review
petition and a recall petition. While in a review
petition, the Court considers on merits whether there
is an error apparent on the face of the record, in a
recall petition the Court does not go into the merits
but simply recalls an order which was passed without
giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32
as a recall petition because the order passed in the
decision in All Bengal Licensees Association Vs.
Raghabendra Singth & Ors. [2007(11) SCC 374]
cancelling certain licences was passed without giving
opportunity of hearing to the persons who had been
granted licences.”
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Considering the above judgment, the Hon’ble Apex
Court has simply considered the distinction between the
recall and review. In none of the matters, it can be said
that order which is now sought to be recalled was
challenged before the highest forum and was confirmed
by the highest forum and thus, order attained finality.
6.7 The another contention, which is sought to be
canvassed that when the Supreme Court has dismissed
the Special Leave to Appeal in limine, even then, the
proceeding for recall can be filed. I found no merit in
such submission as Supreme Court has, after hearing the
party and considering the submission, thought it fit to
dismiss the petition and also also considered the fact
that looking to the huge amount is involved in the
present petition and with a view to giving proper time
to the present petitioner, the Supreme Court has directed
to comply with the direction of the trial court within
three months from the date of the order. Instead of
complying with that direction, the petitioner is filing
present application, which is essentially for review of the
order dated 30.01.2025 passed in Special Criminal
Application No.30 of 2025, which is prima facie found an
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attempt to misuse the process of law though the same is
not tenable in the eyes of law. Hence, no relief can be
granted in favour of the present petitioner. It transpires
that the petitioner is trying to delay the proceedings by
filing one proceeding after another whether such
proceedings have any substance or not, with a view to
shrug off from the liability which is fastened by the
judgment of the trial court and also in view of the
direction of the learned Sessions Court, which is
confirmed by the impugned judgment passed by this
Court vide order dated 30.01.2025 in Special Criminal
Application No.30 of 2025 and that order is also
confirmed by dismissing the Special Leave to Appeal.
Therefore, filing of the present proceeding is nothing but
an abuse of process of law.
6.8 It is also relevant to note that once the Court has
already exercised its inherent powers under Section 482
of the Cr.P.C., such application under the guise of
recalling of the order, even considering the Section 362
of the Cr.P.C., such exercise is not permissible. The
Hon’ble Apex Court in the judgment in the case of Smt.
Sooraj Devi vs Pyare Lal and Another reported in AIR
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1981 SC 736 had discussed the scope of Section 362
read with Section 482 of the Cr.P.C. Therefore,
considering all the relevant aspects of the matter, which
is required to be considered at this stage of the matter,
this Court is of the opinion that filing of the present
application for recalling of the order is nothing but an
abuse of process of law by the present petitioner and
with a view to frustrate the proceedings initiated by the
original complainant, which is filed under Section 138 of
the Negotiable Instruments Act for recovery of huge
money, which is now more than Rs.9 crores as on today.
Therefore, considering the fact that in the relevant
judgments of the Hon’ble Apex Court also, the Apex
Court has observed that when the Courts come across
such litigation where the litigant is trying to abuse the
process of law with a view to curb such frivolous
litigation and also with a view to discourage such
unscrupulous litigants, the Court should impose heavy
cost on such litigants.
6.9 It is relevant to refer the judgment of the Hon’ble
Apex Court in the case of Haryana Urban Development
Authority and Another vs. Jagdeep Singh reported in
(2023) 14 SCC 122, more particularly, paras 21 and 22
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are relevant, which are reproduced as under:
“21. In the case in hand, the civil suit was filed on
1.10.2003 by the Respondent challenging the demand of
additional price. Judgment of this Court in Sanjay Gera’s
case was delivered on 22.02.2005. Despite this fact being in
knowledge of the Appellants, the suit was contested and the
same was decreed on 19.08.2008. The matter did not end
here, appeal was preferred by the appellant before the First
Appellate Court and on failure even before the High Court
and thereafter before this Court. For the aforesaid reasons
and wasting the time of the Courts at different levels, we
deem it appropriate to burden the Appellants with cost of
₹1,00,000/- to be deposited with the Supreme Court1,00,000/- to be deposited with the Supreme Court
Mediation Centre.
22. In addition, the Respondent having been dragged in
unnecessary litigation upto this Court deserves to be
awarded cost of ₹1,00,000/- to be deposited with the Supreme Court50,000/-. The aforesaid amount shall be
recovered by the Appellants from the guilty officers/officials
who opined the case to be fit for filing appeal at different
levels despite being covered by judgment of this Court.”
6.10 It is also fruitful to refer the judgment of the
Hon’ble Apex Court in the case of Dnyandeo Sabaji Naik
and Another vs. Pradnya Prakash Khadekar and Others
reported in (2017) 5 SCC 496, more particularly, paras
12 to 15.4 are relevant, which are reproduced as under:
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“12. This case indicates a blatant abuse of the process of
the Court. The petitioners not only took the benefit of an
order of the High Court granting them one year’s time to
vacate the premises but obtained a further extension of a
period of four months to vacate. The petitioners then filed a
Review Petition before the High Court and moved another
application, this time seeking an extension of five years to
vacate the premises. The time of the High Court and,
unfortunately, of this Court as well had to be devoted to a
thoroughly frivolous proceeding. Learned counsel for the
petitioners in fact sought to urge that as a result of the
judgment of the City Civil Court, the petitioners have been
deprived of establishing that their status as licensees
fructified into a tenancy with effect from 1 February 1973.
Quite apart from the fact that such a plea would not be
open to the petitioners in the background of what has been
observed earlier, we find even on merits that the
submission requires only be stated to be rejected. We have
extracted in the earlier part of this judgment the specific
finding of the Trial Court based on the admissions of the
predecessor-in-interest of the petitioners that the premises
were granted to them on the basis of a conducting
agreement. Besides this, in the earlier proceeding that was
instituted in the Small Causes Court, it was found that the
premises have been granted under a conducting agreement
and there was no relationship of licensor and licensee. That
being the position, the petitioners would not acquire status
as tenants with effect from 1 February 1973, there being no
licence in their favour.
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13. This Court must view with disfavour any attempt by a
litigant to abuse the process. The sanctity of the judicial
process will be seriously eroded if such attempts are not
dealt with firmly. A litigant who takes liberties with the
truth or with the procedures of the Court should be left in
no doubt about the consequences to follow. Others should
not venture along the same path in the hope or on a
misplaced expectation of judicial leniency. Exemplary costs
are inevitable, and even necessary, in order to ensure that
in litigation, as in the law which is practised in our
country, there is no premium on the truth.
14. Courts across the legal system – this Court not being
an exception – are choked with litigation. Frivolous and
groundless filings constitute a serious menace to the
administration of justice. They consume time and clog the
infrastructure. Productive resources which should be
deployed in the handling of genuine causes are dissipated
in attending to cases filed only to benefit from delay, by
prolonging dead issues and pursuing worthless causes. No
litigant can have a vested interest in delay. Unfortunately,
as the present case exemplifies, the process of dispensing
justice is misused by the unscrupulous to the detriment of
the legitimate. The present case is an illustration of how a
simple issue has occupied the time of the courts and of
how successive applications have been filed to prolong the
inevitable. The person in whose favour the balance of
justice lies has in the process been left in the lurch by
repeated attempts to revive a stale issue. This tendency can
be curbed only if courts across the system adopt an
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institutional approach which penalizes such behavior. Liberal
access to justice does not mean access to chaos and
indiscipline. A strong message must be conveyed that courts
of justice will not be allowed to be disrupted by litigative
strategies designed to profit from the delays of the law.
Unless remedial action is taken by all courts here and now
our society will breed a legal culture based on evasion
instead of abidance. It is the duty of every court to firmly
deal with such situations. The imposition of exemplary costs
is a necessary instrument which has to be deployed to weed
out, as well as to prevent the filing of frivolous cases. It is
only then that the courts can set apart time to resolve
genuine causes and answer the concerns of those who are
in need of justice. Imposition of real time costs is also
necessary to ensure that access to courts is available to
citizens with genuine grievances. Otherwise, the doors would
be shut to legitimate causes simply by the weight of
undeserving cases which flood the system. Such a situation
cannot be allowed to come to pass. Hence it is not merely
a matter of discretion but a duty and obligation cast upon
all courts to ensure that the legal system is not exploited
by those who use the forms of the law to defeat or delay
justice. We commend all courts to deal with frivolous filings
in the same manner.
15. We accordingly dismiss the Special Leave Petitions but
while doing so, direct that:
5.1 the petitioners shall vacate the premises on or before 7
March 2017;
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15.2 In case the petitioners fail to vacate the premises by
the date indicated in (i) above, they shall expose themselves
to civil and criminal consequences under the law;
15.3 The petitioners shall pay all arrears for use of the
premises computed at the rate fixed in the order of this
Court dated 28 August 2015 within four weeks; and
15.4 The petitioners shall pay costs quantified at Rs 5
lakhs (Rupees five lakhs) to the respondents within two
months.”
6.11 Considering the amount involved in subject
matter of the present petition and considering the
conduct of applicant by considering the fact that the
petitioner is filing one application after another, and also
the order, which is now sought to be recalled which is
rather confirmed by the Hon’ble Apex Court by
dismissing the Special Leave to Appeal, instead of
complying with the direction given by the Hon’ble Apex
Court, the petitioner has filed present proceeding and,
therefore, this Court by taking serious view of the
matter and by considering the conduct of the present
petitioner, it is a fit case to impose exemplary heavy
cost on the petitioner, who has tried to misuse the
machinery of law by filing one proceeding after another
with a view to defeat the ultimate claim. Therefore,
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NEUTRAL CITATION
R/CR.MA/8571/2025 ORDER DATED: 02/05/2025
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looking into the amount involved in subject matter of the
present application, this Court considers that it is a fit
case to impose cost of Rs.5 lakhs upon the present
applicant for filing such frivolous litigation. Out of total
Rs.5 lakhs, Rs.2 lakhs shall be paid to the original
complainant and Rs.1.5 lakhs shall be deposited before
the Gujarat High Court Advocates’ Law Library and
remaining Rs.1.5 lakhs shall be deposited before the
Gujarat High Court Legal Services Authority. The said
amount shall be paid/deposited within time of 30 days
from today and receipts of the same shall be produced
before the Registry of this Court within a period of 30
days from today. It is open for the Registry that if the
amount of cost is not deposited within the time, the
Registry may place the matter for further appropriate
order.
7. With the aforesaid observation, the present petition
is dismissed with above-mentioned cost imposed on the
applicant.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
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