Gujarat High Court
Amitbhai Nandlalbhai Pithva vs M/S Leader Electric Company on 5 August, 2025
NEUTRAL CITATION
C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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AMITBHAI NANDLALBHAI PITHVA
Versus
M/S LEADER ELECTRIC COMPANY
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR MEHUL M MEHTA(3416) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Mehul M. Mehta waives service of notice of Rule for respondent. With the consent of learned advocates appearing for the respective Page 1 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined parties, matter is taken up for final hearing.
2. Heard learned Advocate Mr. Pratik Y. Jasani for the petitioner and learned Advocate Mr. Mehul M. Mehta for the respondent.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned order dated 10.10.2022 passed by the learned Small Causes Court, Rajkot in Civil Misc. Application no. 9 of 2021; and be further pleased to allow Civil Misc. Application no. 9 of 2021 as prayed for; (B) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay operation, execution and implementation of the impugned order dated 10.10.2022 passed by the learned Small Causes Court, Rajkot in Civil Misc. Application no. 9 of 2021 as well as stay further proceedings of Special Execution Petition no. 79 of 2020 pending in the Court of learned Small Causes Court, Rajkot;
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs, in favour of the petitioner, as deemed fit in the interest of justice."
4. The parties will be referred to as per their original positions before the Trial Court.
5. The short facts of the case appears to be that:
5.1. The petitioner herein was the defendant of Summary Suit Page 2 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined No.1052 of 2019, filed by the respondent herein before the Small Causes Court, Rajkot, which was decreed ex-parte against him. So, the petitioner had filed impugned application being Civil Misc. Application No.9 of 2021, under Order 37, Rule 4 of the Code of Civil Procedure. The respondent had objected such application, mainly on the ground that despite service of notice upon the petitioner, he chose not to appear in the suit; thereby, such application should not be entertained.
5.2. After hearing the parties, the Trial Court vide its impugned order dated 10.10.2022, rejected the impugned application filed by the petitioner.
5.3. Feeling aggrieved and dissatisfied with the aforesaid order, the present writ application is filed by original defendant of the aforesaid suit.
6. SUBMISSIONS OF PETITIONER-DEFENDANT:
6.1. Learned Advocate Mr. Jasani would submit that there was no valid service of notice of suit upon the petitioner (defendant), inasmuch as notice, which was served through Registered Post A.D., having the postal endorsement on the cover that "door is locked" and further endorsement that it is "unclaimed". It is submitted that when the door of defendant was locked, it cannot be presumed that it had either refused Page 3 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined by petitioner such post, or it can be considered as a valid service of notice upon petitioner.
6.2. Learned Advocate Mr. Jasani would submit that the Trial Court has committed a serious error of law by assuming that once an endorsement on the cover mentioned that it is "unclaimed", it is valid service. It is submitted that there was an additional postal endorsement on the cover itself, which was unnoticed by the Trial Court, to the effect that the door was closed.
6.3. Learned Advocate Mr. Jasani has also pointed out that after alleged service of notice upon the petitioner, the date fixed was 22.10.2019 and suit was adjourned on 21.11.2019. On such date, the Presiding Officer was not available; thereby, the suit was adjourned on 31.12.2019. It is further submitted that by way of an application appears to have been filed by the respondent/plaintiff on 26.11.2019, the date of the suit was advanced. Consequently, ex-parte decree was passed on 07.12.2019 by the Trial Court against the petitioner. 6.4. Learned Advocate Mr. Jasani would submit that considering the manner in which the ex-parte decree came to be passed by the Trial Court that too without giving reasonable opportunity of hearing to the petitioner/defendant, it violates the fundamental rights of petitioner to defend the suit in Page 4 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined accordance with law.
6.5. Learned Advocate Mr. Jasani would further submit that special circumstances have been made out by the petitioner, inasmuch as the defence of the petitioner to defend the suit in question are stated/mentioned in para-4 and 5 of impugned application, which was required to have been considered by the Trial Court while adjudicating impugned application, but having not done so, it committed a jurisdictional error. 6.6. Making the above submissions, learned Advocate Mr. Jasani would request this Court to allow the present writ application.
7. SUBMISSIONS OF RESPONDENT-PLAINTIFF:
7.1. Per contra, learned Advocate Mr. Mehta would submit that there is no merit in the present writ application, which may be dismissed by this Court, as the petitioner was duly served with the summons of suit, in which he deliberately remained absent. It is submitted that having not defended the summary suit, a valid decree was passed against him. 7.2. Learned Advocate Mr. Mehta would further submit that the Trial Court has not committed any error while rejecting impugned application. It is submitted that just to delay the execution of money decree, the impugned application came Page 5 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined to be filed after a long period of time.
7.3. Learned Advocate Mr. Mehta would further submit that as per postal endorsement, the summons/notice was unclaimed by petitioner/defendant, which amounts to valid service of notice upon him and in that view of the matter, the ground which was set up by defendant in the impugned application requires to be rejected.
7.4. Learned Advocate Mr. Mehta would further submit that prior to filing of the suit, a legal notice was served upon defendant at the same address to which the notice/summons was issued and the defendant has received such legal notice; thereby, it can be assumed that defendant deliberately avoided service of notice of the suit.
7.5. Lastly, learned Advocate Mr. Mehta would submit that if this Court would give any opportunity to the petitioner whereby, allow him to appear in the summary suit, in that case, an appropriate direction be issued to the Trial Court to expeditiously adjudicate the summons for judgment and the application for leave to defend, if any which may be filed by the defendant, as the summary suit was instituted in the year 2019.
7.6. Making the above submissions, learned Advocate Mr. Mehta would request this Court to reject the present application. Page 6 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025
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8. No other and further submissions are made by any of learned advocates.
POINT FOR DETERMINATION
9. The short question falls for my consideration as to whether summons/notice of summary suit filed by respondent against petitioner was validly served upon petitioner or not? whether, in the facts and circumstances of the case, the impugned application filed by petitioner/ defendant under Order 37, Rule 4 of C.P.C. was correctly rejected by the Trial Court or not?
ANALYSIS
10. The facts which are narrated hereinabove are not in dispute.
It remains undisputed that as per the postal endorsement, the Registered Post A.D. cover returned back to the Trial Court with the endorsement i.e. "door locked" and "unclaimed". When such endorsements were found on the cover, it was incumbent upon the Trial Court to issue a fresh notice upon the defendant, as the service of notice was remained incomplete. The postal endorsement indicates that premises of defendant was closed when postman went to deliver notice/summons of Trial Court i.e. door closed. So, in such situation, postman made further endorsement i.e. "unclaimed". It is not the case of the plaintiff that the Page 7 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined defendant was made aware about institution of summary suit in question by any other mode prior to passing of judgment and decree.
11. Thus, in view of the aforesaid undisputed fact remained on record, when summons/ notice of the summary suit was not served upon the defendant, any order/judgment/decree passed by the Trial Court would be considered as having been passed in violation of principles of natural justice.
12. The Trial Court has arrived at the conclusion that once the R.P.A.D. cover returned back with an endorsement of "unclaimed", it would be deemed to have been served upon defendant. Such a finding of fact in light of said facts is erroneous, inasmuch as the Trial Court has failed to notice the further endorsement on the cover itself i.e. "door locked". Had there been only endorsement to the effect that "unclaimed", the situation could have been different and in that case, the defendant was required to explain under which circumstances such cover was unclaimed. In the present case, undisputedly, there is a postal endorsement which states that "door locked"/"unclaimed". In this factual situation, the presumption drawn by the Trial Court about valid service of notice upon defendant is perverse, arbitrary and against basic principles of natural justice. Page 8 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025
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13. Furthermore, the petitioner has set out his defence in paragraph 4 and 5 of impugned application, which could have been examined by Trial Court but was undisputedly not gone into. As per Order 37, Rule 4 of C.P.C., the Trial Court was required to consider special circumstances while adjudicating application filed thereunder. As per settled legal position of law, when defendant files any such application under Order 37, Rule 4 of C.P.C., he has to make out special circumstances i.e. legal and valid defence to defend the summary suit. Trial Court is required to consider it while adjudicating such application. The Trial Court appears to have not gone into the merits of the matter and rejected the impugned application solely on the ground that there was a valid service of notice upon the defendant, which is also gross error of law and also jurisdictional error committed by the Trial Court while passing impugned order. [ See - Rajni Kumar V/S Suresh Kumar Malhotra reported in (2003) 5 SCC 315 ]
14. Another aspect which ought to have been considered by Trial Court would be that as per Rojkam, summary suit, when listed on 21 November 2019, was in fact adjourned to 31 December 2019. It appears from Rojkam of the summary suit that there was an advancement of the hearing date of summary suit and the same was taken up on 26.11.2019. Page 9 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025
NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined Upon the request of the plaintiff stating that none remained present for the defendant, the Trial Court appears to have considered such request, posted the suit for orders and thereby, the summary suit was decreed in favour of the respondent vide order dated 07.12.2019. Even if this Court believed the case of respondent for the time being, such advancement of date of summary suit was not intimated to petitioner/defendant and in that view of the matter also, the ex-parte judgment and decree dated 07.12.2019 passed against the defendant required to be interfered by the Trial Court.
15. Thus, in view of the aforesaid peculiar facts and circumstances of the case, I am of the view that defendant was not served with service of notice/summons of suit of summary suit instituted by respondent and in absence of examination of his defence, impugned application could not have been rejected.
CONCLUSION
16. In light of the foregoing reasons, it is required to be held that summons / notice of Summary Suit No.1052 of 2019 was not duly served upon the petitioner/defendant.
17. The Trial Court has committed gross error of law and so also committed jurisdictional error by not correctly examined the Page 10 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined impugned application filed by petitioner/ defendant under Order 37, Rule 4 of CPC.
18. Consequently, the impugned order dated 10.10.2022 passed by Additional Small Cause Court, Rajkot in Civil Misc. Application No.9 of 2021 is hereby quashed and set-aside. Accordingly, the impugned application being Civil Misc. Application No.9 of 2021, filed by petitioner / defendant is hereby allowed.
19. The Summary Suit No.1052 of 2019 is restored back on its original file. The plaintiff of aforesaid summary suit may file summons for judgment by serving an advance copy upon the defendant, who shall also be permitted to file its leave to defend as per procedure envisaged under Order 37 of C.P.C. Once such applications are filed by the respective parties, the Trial Court is hereby directed to decide such applications in accordance with law, without being influenced by any of the observations so made hereinabove.
20. The Trial Court is hereby directed to decide summons for judgment and leave to defend application, which may be filed in Summary Suit No.1052 of 2019, within six months from the date of filing of such applications, as the suit was instituted in the year 2019 albeit, in accordance with law.
21. Thus, in view of the aforesaid, the present writ application is Page 11 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025 NEUTRAL CITATION C/SCA/24398/2022 JUDGMENT DATED: 05/08/2025 undefined hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J) Nilesh Page 12 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:58:15 IST 2025