Gujarat High Court
Firozaben W/O Abdul Rehman Qureshi D/O ... vs Kubrabanu W/O Zuber Campwala D/O Late ... on 12 September, 2025
NEUTRAL CITATION
C/SCA/22647/2022 ORDER DATED: 12/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22647 of 2022
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FIROZABEN W/O ABDUL REHMAN QURESHI D/O LATE HAJI
ABDULKADAR RAHIMBHAI QURESHI & ORS.
Versus
KUBRABANU W/O ZUBER CAMPWALA D/O LATE HAJI ABDUL KADAR
RAHIMBHAI QURESHI & ANR.
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Appearance:
MR. AAMIR S PATHAN(7142) for the Petitioner(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/09/2025
ORAL ORDER
1. The present application is filed under Article 227 of the Constitution of India seeking the following relief:-
"(A) This Hon'ble Court may be pleased to admit this Special Civil Application.
(B) This Hon'ble Court may be pleased to allow this petition by issuing an appropriate order or direction for quashing and setting aside the order passed below Exh. 96, 98 & 100 in Special Civil Suit No. 471/2016 by Ld. 33rd Addl. Senior Civil Judge & Addl. Chief Judicial Magistrate, Vadodara dated 17.09.2022 & 22.09.022 and further, be pleased to allow Exh. 100 by allowing the Original Plaintiff to cross- examine the Petitioner No. 6 in the interest of justice. (C) Pending Admission, hearing and till final disposal of this application, This Hon'ble Court may be pleased to allow to stay the implementation, execution and operation of order passed Civil Misc. Application No. 471/2016 by Ld. Principal Senior Civil Judge, Vadodara dated 17.09.2022 & 22.09.2022 in the interest of justice.Page 1 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025
NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined (D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
2. At the outset, learned advocate Mr.Amir S. Pathan appearing for the petitioners would submit that a hyper- technical approach was taken by the Trial Court , whereby the right of petitioner No.6, who happens to be defendant No.7 in the suit in question, though closed but never reopened despite request made to the Trial Court .
2.1. Learned advocate Mr. Pathan would state that on 17.09.2022, when the petitioner was subjected to cross- examination, but as he was a Branch Manager in the bank at Dabhoi, he could not make himself available due to congestion of traffic and thereby, unable to reach in time. So, an application below Exhibit 96, made by the respondent-plaintiff, requesting that the right of petitioner No.6/defendant No.7 to lead oral evidence be closed, was accepted. 2.2. Learned advocate Mr. Pathan would further state that on the very day, through an impugned application below Exhibit 98, request was made by the learned advocate of petitioner No.6/defendant No.7 before the Trial Court to Page 2 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025 NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined reopen his right to lead evidence, which was also rejected. 2.3. It is submitted that on 22.09.2022, an impugned application filed below Exhibit 100 came to be filed with the request to reopen the right of petitioner No.6/defendant No.7; also did not appeal to the Trial Court, whereby it was rejected with costs.
2.4. Learned advocate Mr. Pathan would respectfully submit that the Trial Court has taken a very hyper-technical approach and has not appreciated the reason for the non-appearance of the petitioner no.6 on the day of his cross-examination, which resulted into miscarriage of justice.
2.5. Learned advocate Mr. Pathan would submit that, as per the present legal position of law, the rule of procedure is a handmaid of justice, and accordingly, such hyper-technical approach requires to be avoided by the Court while advancing justice to the parties. At best, with reasonable costs, the right of petitioner No.6/defendant No.7 could have been reopened. 2.6. Lastly, learned advocate Mr. Pathan would submit and Page 3 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025 NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined request this Court that, on any condition, which may be imposed upon petitioner No.6/defendant No.7, his right to lead oral evidence may be reopened.
3. Heard learned advocate Mr.Amir S. Pathan for the petitioners. Though served, none appears for the respondents, including the original plaintiff.
4. This Court, vide order dated 23.11.2022, while issuing notice in the matter, passed the following order:-
"Heard the learned advocate Mr. Aamir S. Pathan on behalf of the applicant who by way of this application, challenges orders dated 17.9.2022 and 22.9.2022 whereby the learned Civil Judge (S.D) Vadodara had closed the stage of cross-examination of the present applicant himself and whereas the application for reopening of the said stage had also been rejected.
1.1 Learned advocate Mr. Pathan on behalf of the applicant would submit that the present applicant, was working as a Bank Manager at Dabhoi and whereas while the impugned orders had been passed, at the relevant point of time, the stage of the Civil Suit, was upon crossexamination of the present applicant himself and whereas in fact, the cross-examination of the present applicant was in progress and on the given date, since the present applicant could not reach the Court in time, the first order dated 17.9.2022 closing the stage of evidence of the present applicant-defendant, had been closed. Learned advocate would also draw the attention of this Court to a purshis given on behalf of the present applicant on the very day by learned advocate appearing on behalf of the applicant and whereas by way of such application, the applicant had sought for reopening the stage of cross-examination of the applicant himself that such application was also rejected on the ground that the applicant, who was to be cross-examined was not present in the Court. Learned advocate would submit that even thereafter, the applicant had submitted an application on 22.9.2022 for reopening the stage and whereas even such application/purshis Page 4 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025 NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined had been rejected on the ground that vide earlier order, the learned Court had already decided the issue. Learned advocate would submit that as such, the present applicant was a diligent litigant and whereas prior to the impugned orders being passed, the present applicant had been diligently following up the proceedings of the suit and whereas the present applicant was also constantly present on the dates when the Civil Suit had been listed. Learned advocate would submit that as such the absence of the present applicant, was for the first time and whereas the learned Trial Court, ought to have considered the application preferred by the applicant for reopening the right of being cross-examined.
2. Having considered the submissions made by learned advocate Mr. Pathan and having perused the documents on record, this Court is of the prima facie opinion that the present applicant, ought to have been given another opportunity, more particularly if required, the learned Court could have imposed some cost upon the present applicant, to balance the equities. As it is by now it is a well settled position, propounded by the Hon'ble Apex Court in various judgments that the procedure is the hand-maiden of justice and whereas the Courts should endeavor to ensure that substantial justice is done rather than justice being sacrificed at the altar of procedure. In the instant case, since it appears that the right of the present applicant to defend himself, effectively, may have been jeopardised, without finding any fault with the learned Court below, at this stage, this Court deems it appropriate to pass the following order :
"Issue Notice for final disposal returnable on 6.12.2022."
3. By way of interim relief, the learned 33rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara is directed not to proceed with the Special Civil Suit No. 471 of 2016 till further orders.
4. Direct Service of the order is permitted.
5. To be listed on 6.12.2022 on top of the Board."
5. It appears that despite being granted sufficient opportunity, none appeared on behalf of the respondents, including the original plaintiff.
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NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined
6. It remained undisputed on record that defendant No.7 was not available for examination only on one day; his right to cross-examination was closed. Though it was requested to reopen on the very day, the Trial Court took a very hyper- technical approach, whereby it rejected such requests. Even within no time, on the next date of hearing, 22.09.2022, again the Trial Court was requested by defendant No.7, citing reasons for not reaching the Court in time; this was not appealed to the Trial Court, and the impugned applications were rejected with costs.
7. The reason for not making himself available for cross- examination was due to the fact that as he was working as a Branch Manager in the Dabhoi bank and due to traffic conditions, he could not reach in time. Such explanation cannot be said to be an excuse on the part of the litigant not to remain present inasmuch as it cannot be said to be a dilatory tactic to avoid cross-examination or to delay the trial.
8. It is a well-settled legal position that the rule of procedure is a handmaid of justice, and a hyper-technical Page 6 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025 NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined approach requires to be avoided by the Trial Court. It is profitable to rely upon recent past decision of Hon'ble Apex Court in a case of Sugandhi (Dead) By Lrs & Anr V/S P Rajkumar Rep By His Power Agent Imam Oli, reported In (2020) 10 SCC 706 wherein held as under:-
"[9] It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute....."
(emphasis supplied)
9. It is expected that the principles of natural justice be observed while deciding any request made by a party, ensuring that no serious prejudice is caused to any party when such a prayer made by any party is accepted.
10. According to my view, with reasonable costs, the Trial Court could have reopened the right of defendant No.7 to lead his oral evidence instead of permanently closing his right to lead evidence, which would be fatal to the defendant and Page 7 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025 NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined affect his defense for all time.
11. Such approach adopted by the Trial Court resulted in a miscarriage of justice and requires to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India. [See - Waryam Singh vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
12. In view of the foregoing discussion and reasons, I am of the view that the present application requires to be allowed. Nonetheless, as observed hereinabove, the petitioner is required to deposit a sum of Rs.2,000/- with the DLSA, Vadodara as costs, and on such condition, his right to lead oral evidence is hereby reopened.
13. In view of the foregoing discussion and reasons, the impugned orders dated 17.09.2022 & 22.09.2022 below Exhs.98 and 100 passed by 33rd Addl. Senior Civil Judge & Addl. Chief Judicial Magistrate, Vadodara is hereby quashed and set aside. Page 8 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025
NEUTRAL CITATION C/SCA/22647/2022 ORDER DATED: 12/09/2025 undefined Consequently, the impugned applications filed below Exhibits 98 and 100 are hereby allowed on condition that petitioner No.6 / defendant No.7 of Special Civil Suit No. 471 of 2016, shall deposit a cost of Rs.2,000/- with DLSA, Ahmedabad within a period of 10 days from the date of receipt of the order.
14. Once, such order of costs is complied with by defendant No.7, his right to lead oral evidence will be reopened, and he will have to make himself available for examination on the day fixed by the Trial Court.
15. It goes without saying that defendant No.7 shall not delay the trial anymore and is required to make himself available for his cross-examination unless there are unavoidable circumstances on his part.
16. In view of the foregoing conclusion, the present application is partly allowed. Interim relief stands vacated forthwith. No order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J) MOHD MONIS Page 9 of 9 Uploaded by MOHD MONIS(HC01900) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 07:38:53 IST 2025