High Court of Gujarat
YOGESH RUDARJI DESAIversusASPI JAMSHEDJI SANJANA
- Disposal
- 33-CA DISPOSED OF
- Bench
- DEVAN M DESAI
Holding
The order dated 07.01.2026 is recalled, the appeal is restored to file for respondent No.6, and no fresh advocate notice is required.
Summary
The applicant, the original appellant, filed a recall application seeking to set aside the order dated 07.01.2026 in First Appeal 396 of 1999, alleging that respondent No.6 had not been served with an advocate notice. The court noted that respondent No.6, along with respondents 2, 4 and 5, were initially represented by counsel who later withdrew, and that respondent No.6 remained unserved despite an advocate notice being issued. The respondents contended that they now have instructions for Mr. Jay Shah to appear on behalf of respondent No.6 and that no fresh notice would be required. Considering the applicant’s claim and the respondents’ instructions, the court recalled the 07.01.2026 order, restored the appeal for respondent No.6, and held that a fresh advocate notice was unnecessary. Consequently, the recall application was allowed.
Issues considered
- Whether the order dated 07.01.2026 can be recalled on the ground of non‑service of advocate notice to respondent No.6.
- Whether a fresh advocate notice is required when counsel now has instructions to appear for the unserved respondent.
Subjects
recall of orderadvocate noticeservice of noticecivil procedurerestoration of partyHigh Court of Gujarat
Judgment
C/CA/519/2026 ORDER DATED: 18/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR RECALL) NO. 519 of 2026
In R/FIRST APPEAL/396/1999
==========================================================
YOGESH RUDARJI DESAI
Versus
ASPI JAMSHEDJI SANJANA & ORS.
==========================================================
Appearance:
MR TARAK DAMANI(6089) for the Applicant(s) No. 1
MR ASPI M KAPADIA(1865) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/02/2026
ORAL ORDER
1. The present application is filed by the applicant – original
appellant seeking following prayers:
“(A) Your Lordships be pleased to admit and allow
the present application.
(B) Your Lordships be pleased to recall order
dated 07.01.2026 passed by this Hon’ble Court
below First Appeal 396 of 1999.
(C) Your Lordships be pleased to issue fresh
advocate notice to opponent No. 6 herein i.e. the
original respondent No. 6 i.e. Dr. Mahesh Rudarji
Desai on the current address which is as follow
“10 Vanita Park Bungalows, B/H Ashirwad Palace,
Bhattar, Surat 395007.”
(D) Your Lordships be pleased to grant any other
relief(s) in the facts and circumstances of this
case.”
Page 1 of 4
C/CA/519/2026 ORDER DATED: 18/02/2026
2. Heard learned advocate Mr. Tarak Damani for the applicant
– original appellant and learned advocate Ms. Sangini Thakkar for
learned advocate Mr. Jay Shah for original respondent Nos. 2.1,
3.1 to 3.4, 5.1 to 5.3 and 7.1 to 7.2.
3. It is submitted that the captioned First Appeal came to be
listed for final hearing before this Court on 07.01.2026. The order
dated 07.01.2026 reflects that respondent No. 6 has remained
unserved since the inception of the First Appeal. However, it
appears from the record that respondent No. 6, as well as
respondent Nos. 2, 4 and 5, were being represented by learned
advocate Mr. A.B. Munshi. It is further submitted that during the
pendency of the appeal, respondent Nos. 2, 4 and 5 expired, and
the heirs of respondent Nos. 2 and 5 were brought on record.
However, the heirs of respondent No. 4 could not be brought on
record. It is stated that after the dissolution of his marriage,
respondent No. 4 had been residing with the present applicant
and, in absence of any contact with his children, the heirs could
not be brought on record. So far as respondent No. 6 is
concerned, learned advocate Mr. A.B. Munshi filed a note before
Page 2 of 4
C/CA/519/2026 ORDER DATED: 18/02/2026
the Registry on 08.07.2025 expressing withdrawal of his
appearance in the captioned appeal on behalf of the respondents.
The learned Additional Registrar (Judicial) accepted the said note,
and the office was directed to issue advocate notice to respondent
No. 6. The advocate notice came to be issued, however, the
bailiff’s report of the year 2025 indicates that the same remained
unserved qua respondent No. 6. It is therefore submitted that, in
the interest of justice, the order dated 07.01.2026 be recalled, as
learned advocate Mr. Jay Shah now has instructions to appear on
behalf of respondent No. 6. No other submissions were canvassed
by learned advocate for the applicant – original appellant.
4. Per contra, learned advocate for the respondents submitted
that they have instructions to appear on behalf of respondent No. 6
and that, in the event the order dated 07.01.2026 is recalled and
respondent No. 6 is reflected in the array of parties, appearance
on behalf of respondent No. 6 shall be filed before the Registry. No
other submissions were canvassed by learned advocate for the
respondents.
Page 3 of 4
C/CA/519/2026 ORDER DATED: 18/02/2026
5. Considering the averments made in the application and the
submissions canvassed by learned advocates for the respective
parties, particularly the statement that learned advocate Mr. Jay
Shah has instructions to appear on behalf of respondent No. 6, the
order dated 07.01.2026 is hereby recalled. The appeal qua
respondent No. 6 stands restored to file. Since learned advocate
Mr. Jay Shah has instructions to appear on behalf of respondent
No. 6, no fresh advocate notice is required to be issued qua
respondent No. 6. The present application stands allowed.
(D. M. DESAI,J)
MUSKAN
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: MUSKAN AJAY MENON(HC02359), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 18/02/2026 17:01:58
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