NEUTRAL CITATION
C/SCA/14182/2020 JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14182 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PASHCHIM GUJARAT VIJ COMPANY LTD. THROUGH ITS CHIEF
ENGINEER
Versus
IMTIYAZ TAMACHI GAGADA
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
NISHIT A BHALODI(9597) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/08/2023
ORAL JUDGMENT
1. Rule. Learned advocate Mr. Nishit Bhalodi waives service of rule on behalf of respondent. With the consent of learned advocates for both the sides, the matter is taken up for final hearing.
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2. This petition under Article 227 of the Constitution of India is directed against the order dated 13.01.2020 passed below Exh.43 in Special Civil Suit No.66 of 2017 whereby the application filed the petitioner who is original defendant came to be rejected.
3. What can be gathered from the pleadings is that respondent no.1 herein has filed Special Civil Suit No.66 of 2017 for recovery of Rs.54,75,000/- as compensation alleging that due to negligence of the petitioner, the respondent - plaintiff has suffered electric shock resulting into permanent disability. In the said suit, after it being registered, the Court has issued notice. The petitioner was represented by some advocate, however, no written statement was filed and no evidence was produced on account of fault on the part of the learned advocate for the petitioner.
3.1. In background of above facts, the application at Exh.43 (Annexure A) was filed in Special Civil Suit No.66 of 2017 for re- opening of the right to file Written Statement and further to adduce evidence. This application as stated herein above came to be rejected by the Court below which has given rise to present petition.
4. Learned advocate Ms.Lilu Bhaya for the petitioner having taken this Court through grounds of memo of petition as well as grounds taken in application at Exh.43 (Annexure A) would submit that proceedings of the suit was entrusted to Advocate Shri R.B.Khoja. However, he was seriously ill and could not attend proceedings and at the same time, learned advocate Mr. Page 2 of 5 Downloaded on : Sun Sep 17 03:02:08 IST 2023 NEUTRAL CITATION C/SCA/14182/2020 JUDGMENT DATED: 31/08/2023 undefined R.B.Khoja has not made any alternate arrangement nor has informed to the present petitioner about proceedings of the suit. In wake of this aspect, the petitioner's right to file Written Statement came to be closed on 20.08.2018 and thereafter on 09.01.2019 right to produce evidence was closed. She would further submit that principles of natural justice demands that present petitioner may be allowed to put its case so that trial of the suit can be conducted also after considering defence raised by the defendant. She would further submit that not allowing the petitioner to file Written Statement as well as evidence would run suit to be disposed of ex-parte and not on merits. She would submit that the petitioner is ready and willing to pay cost to the original plaintiff for such delayed approach. She would further submit that reading Order 8 Rule 1 of the Code of Civil Procedure indicates that it is directory in nature. The Court in reign of interest of justice can permit the defendant to raise defence even at the stage of final arguments. Upon such submissions, she would submit to allow this petition and to quash and set aside the impugned order and to permit the petitioner to file Written Statement and further to lead evidence. She would submit that if the trial of the suit is expedited, the petitioner would cooperate positively in conducting trial as early as possible.
5. The petition was resisted by learned advocate Mr. Nishit Bhalodi for the respondent - plaintiff. He would submit that if the order of expediting trial of the suit along with paying cost is made, he would not have any objection to relief claimed by the petitioner.
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6. Having heard learned advocates for both the sides, what appears is that there is total lackadaisical approach on the part of the petitioner by not filing Written Statement within time period as well as evidence. It further reveals that proceedings of the suit is reached to the stage of arguments. To be noted that suit is filed by the person who is electrocuted and suffered disability and such suit is pending for compensation since 2017. The reasons assigned by the petitioner either in Exh.43 or in this petition do not inspire confidence for permitting the petitioner to file Written Statement as well as to file evidence, but not allowing would adversely effect the case of the plaintiff / respondent rather than case of the petitioner - defendant. Virtually it would be ex-parte decree. It is also to be noted that Exh.43 (Annexure A) is not signed by the officer of the petitioner, not verified nor supported by affidavit. Be that as it may, instead of taking hyper-technical approach, let the principle of substantial justice to play. In view of fair submission of learned advocate Mr. Bhalodi which is taken on record and without referring further to the merits of the dispute, this Court is of the opinion that interest of justice could be sub-served if by imposing cost upon the petitioner, prayer in the petition is to be allowed along with expediting the suit proceedings.
7. For the foregoing reasons, I pass the following order :-
Order (1) The petition is hereby allowed. The impugned order (Annexure A) is hereby quashed and set aside provided that the petitioner herein pays cost of Rs.15,000/- to the Page 4 of 5 Downloaded on : Sun Sep 17 03:02:08 IST 2023 NEUTRAL CITATION C/SCA/14182/2020 JUDGMENT DATED: 31/08/2023 undefined original plaintiff within 7 days from the date of receipt of present order.
(2) On compliance of above order, the petitioner is permitted to file Written Statement within outer limit of 15 days therefrom.
(3) It would be open for the learned Trial Court to settle fresh issues, if required but such exercise shall be done within 7 days after filing Written Statement. The plaintiff if feels necessary can lead evidence in addition to what evidence he has already produced before the Court below. (4) The defendant shall cross examine plaintiff's witness, if produced consequent to this order. (5) The defendant shall not take any further time but shall file his oral and documentary evidence as soon as his stage comes.
(6) It is expected from the Court below to hear and decide the entire suit within outer limit of 16 weeks from the date of receipt of present order. (7) Learned Principal District Judge, Kachchh shall ensure that proceedings of the suit is completed within time bound manner stated herein above. (8) Failing to pay cost shall treat this petition as dismissed.
Rule is made absolute to the aforesaid extent.
(J. C. DOSHI,J) SATISH Page 5 of 5 Downloaded on : Sun Sep 17 03:02:08 IST 2023