Gujarat High Court
Jashuben Chabilbhai Vadsola vs M/S. Canspin Industries Through ... on 4 August, 2025
NEUTRAL CITATION
C/SCA/10667/2025 ORDER DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10667 of 2025
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JASHUBEN CHABILBHAI VADSOLA & ORS.
Versus
M/S. CANSPIN INDUSTRIES THROUGH PARTNER TARUNBHAI
GORDHANBHAI VARMORA
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Appearance:
HARSH K RAVAL(9068) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/08/2025
ORAL ORDER
1. Heard learned advocate Mr. Harsh K. Raval for the petitioners.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"a. This Hon'ble Court may be pleased to admit and allow present petition.
b. This Hon'ble Court may be please to quash and set aside the order passed by order dated 07.01.2025' vide Exh. 16 in Civil Misc. Application No. 20 of 2024 by the Principal Senior Civil Judge, Surendranagar;
c. Alternatively, be pleased to permit the petitioners to file fresh Application under Order 9 Rule 13 of CPC by holding and declaring that the impugned order dated Ann: A 07.01.2025' will not be a bar against the same;Page 1 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025
NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined d. Any other and further relief/order as may be deemed necessary, just and proper in the facts of the present case, may also kindly be granted."
Facts of the case
3. The respondent herein is original plaintiff who instituted Special Civil Suit No. 31 of 2018 against the petitioners herein. The suit was filed under Order 7 rule 2 of CPC, sought recovery of Rs. 73 lakh. The defendants No. 1 to 4 i.e. petitioners herein though served chosen not to appear in the suit proceedings. After hearing the plaintiff and defendant No.5, and after analyzing the evidence available on record, the judgement/decree of Rs. 73 lakhs with 6% interest came to be passed on 18.04.2022 against defendants No. 1 to 4 only.
3.1 The only ground which was alleged in the impugned application that summon/ notice of Special Civil Suit No. 31 of 2018 not been served through RPAD upon defendants No. 1 to 4 as registered post receipt produce but its acknowledgment receipt is not produced on record. It is submitted that postal receipt is made available on record but not acknowledgment receipt. So, according to defendants No. 1 to 4, they have not been served with the notice of said suit.
Page 2 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined 3.2 The defendants No. 1 to 4 having faced an execution notice came to know about the aforesaid judgment / decree passed by the trial Court, thereby, approached the trial Court concerned by filing an application being CMA No. 20 of 2024 wherein there was a delay of more than two years in filing such application. As such, impugned application ought to have been filed under Order 9 rule 13 of CPC but titled as filed under Order 37 rule 4 of CPC.
3.3 The original plaintiffs have objected the application. After hearing the parties, the trial Court has rejected such application vide its order dated 07.01.2025 which is challenged by the original defendants No. 1 to 4 by filing the present writ application.
Submission of the petitioners- defendants No. 1 to 4
4. Learned advocate Mr. Raval would submit that the impugned application though filed under Order 37 rule 4 of CPC, but it ought to have been treated being filed under Order 9 rule 3 of CPC. It is submitted that there was delay in filing such application and having not filed any separate delay application, the trial Court has rejected it without giving an opportunity of hearing to defendants No. 1 to 4 to cure the defects in the application. He would further submit Page 3 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025 NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined that once the trial Court comes to the conclusion that application itself is not maintainable, the question of examining the merit of the application would not arise.
4.1 Learned advocate Mr. Raval would further submit that though RPAD acknowledgment on record as referred by the trial Court in its impugned order, but it would not have a signature of the petitioners herein. It is submitted that in fact, they were not made aware about suit proceedings. He would further submit that there is sufficient cause as such made out by the petitioners, inasmuch as when no notice/ summon of the suit came to be served upon the petitioners, an ex-parte money decree passed by the trial Court requires to be quashed and set aside by the trial Court by giving an opportunity of hearing to the petitioners.
4.2 Learned advocate Mr. Raval would further submit that once it is found that the impugned application is as such not maintainable due to non-filing of delay application, the trial Court requires to grant one opportunity to make the things good and for advance of justice, hyper technical approach requires to have been avoided by the trial Court.
4.3 So, making the above submission, learned advocate Mr. Raval would request this Court that such opportunity may be Page 4 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025 NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined granted to the petitioners and accordingly requested to this Court to allow the present writ application.
Point for determination Whether in the facts and circumstances of the case, any gross error of law and or jurisdictional error committed by the trial Court while rejecting the impugned application filed by the petitioners ?
Analysis
5. The facts which are narrated herein above are not in dispute. It appears and as recorded in the impugned order that vide Exh. 17 in the suit, the acknowledgment/proof of service of notice upon defendants have been submitted and below Exh. 18, postal acknowledgment has been produced on record. These show that at the relevant point of time, defendant No.1 to 4 have been served with the summon/ notice of the suit. It is not even disputed by the petitioners herein as having clearly stated in Para-3 of the impugned application, that RPAD receipt is produced on record of the suit but as such proof of acknowledgment has not been submitted on record. This would be a factually incorrect statement made by the petitioners, inasmuch it has been Page 5 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025 NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined clearly observed by the trial Court that below Exh. 17/18, such proof of acknowledgment of postal receipt has been made available on record.
6. Be that as it may, as per Section 27 of the General Clauses Act, 1897, once a document is sent by registered post, it is presumed to have been served upon the addressee unless the contrary is proved. For better understanding, I would like to reproduce the provisions of Section 27 of General Clauses Act, which reads as under :-
"27. Meaning of service by post Where any [Central Act] [Substituted by A.O.1937, for " Act of the Governor General-in-Council.] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. "
7. Once, it has come on record that summon/ notice of the suit has been served upon the petitioners herein through RPAD post, burden was shifted upon the petitioners to Page 6 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025 NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined discharge which they have unable to discharge by leading any appropriate evidence. It is also further requires to be observed and noted that except one plea that they were not aware of suit proceedings as having not received such summon / notice from the trial Court, no other plea set out in the impugned application which was filed after about two years from passing of the date of decree.
8. It was desirable to file a delay application when the impugned application filed for setting aside ex-parte money decree filed after a period of limitation. It is also well settled that if ingredients of Section 5 of Limitation Act made out in the impugned application itself which is filed under Order 9 rule 13 CPC, the Court is required to consider it without insisting for any separate application to be filed i.e. delay application.
9. The trial Court in its impugned order (internal Page-9) has clearly observed that neither any separate delay application is filed nor sufficient cause which caused delay in filing the impugned application made out in the application itself. Thus, on noticing this fact, the trial Court has not exercised its discretion in favour of the petitioners to even condone the delay.
10. This Court has also independently gone through the Page 7 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025 NEUTRAL CITATION C/SCA/10667/2025 ORDER DATED: 04/08/2025 undefined impugned application but unable to find any cause of delay in filing such impugned application, inasmuch as except the ground which has been narrated hereinabove i.e. non- service of notice, there is no other grounds set out/made out in the impugned application.
11. In the light of the aforesaid facts and circumstances of the case, when it has come on record that summon/notice upon defendants No. 1 to 4 have been served wherein only defendant No.5 had appeared and contested the suit, the cause which has been set out in the impugned application is found to be not correct rather misleading whereby, such application requires to have been rejected, which is correctly rejected by the trial Court.
12. It is required to be observed that the trial Court while parting with the order has categorically observed that the applicants - petitioners herein have made a false and incorrect statement on oath in its application which is contrary to the record. When such an attempt have been made by the litigant to make a false and incorrect statement contrary to records, no discretion can be used in favour of such litigant, otherwise it would amount to encourage such litigant who come with false plea before the Court.
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13. This Court could have rejected the present writ application with cost but having considered that petitioners are facing money decree of Rs. 73 lakh with interest & cost, in view such fact, this Court is restrained itself by not burdening further petitioner with the cost.
14. Lastly, the trial Court has not rejected the impugned application only on technical ground that it is filed without delay application but having also observed that no sufficient cause is made out in the application itself be it not remaining present during trial of suit or belately filed impugned application without showing any sufficient cause. Thus, rejected the impugned application on its merit. As such, in view of aforesaid, none of the submissions made by the learned advocate for the petitioners have impressed this Court, which requires to be rejected.
Conclusion
15. The upshot of the aforesaid observations, discussions and reasons, I do not find any merit in the present writ application, which requires to be rejected which is hereby rejected. No order as to costs.
(MAULIK J.SHELAT,J) SALIM/ Page 9 of 9 Uploaded by SALIM(HC01108) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:42:13 IST 2025