Gujarat High Court
Dipak Jayantilal Shah vs Manish M Raval on 25 September, 2025
NEUTRAL CITATION
C/SCA/624/2019 ORDER DATED: 25/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 624 of 2019
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DIPAK JAYANTILAL SHAH
Versus
MANISH M RAVAL
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Appearance:
MR ANUJ K TRIVEDI(6251) for the Petitioner(s) No. 1
MR TEJAS S TRIVEDI(5692) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Tejas S. Trivedi waives service of notice of rule on behalf of the respondent.
2. Heard learned advocate Mr.Anuj K. Trivedi for the petitioner and learned advocate Mr.Tejas S. Trivedi for the respondent.
3. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 29th November, 2018, passed by Page 1 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined the Hon'ble Civil Court, Ahmedabad, below Exhibit 15 in Summary Suit No.545 of 2018;
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction, directing that the Leave to Defend Affidavit of the Petitioner is taken on record in Summary Suit No.545 of 2018, and considered by the Hon'ble Civil Court, Ahmedabad;
(C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the further proceedings of the Summary Suit No.545 of 2018, before the Hon'ble Civil Court, Ahmedabad;
(D) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order dated 29th November, 2018, passed by the Hon'ble Civil Court, Ahmedabad, below Exhibit 15 in Summary Suit No.545 of 2018;
(E) Your Lordships may be pleased to grant an ex-parte interim relief in terms of prayers (C) and (D) hereinabove; (F) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things."
4. At the outset, learned advocate Mr. Anuj, appearing for the petitioner/original defendant, stated that the Trial Court, while rejecting the impugned application, thereby, not reopening the right of the defendant to leave to defend, is unreasonably, erroneously, and contrary to the principles of natural justice, requires interference by this Court. Page 2 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025
NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined 4.1. Learned advocate Mr. Anuj would submit that the defendant appeared in the suit, but there were talks of settlement ongoing between the parties, thereby, he sought time in the matter, and on one date, his advocate could not remain present, and on such date, the defendant's right to file leave to defend was closed.
4.2. Learned advocate Mr. Anuj would further state that upon noticing such fact, the impugned application was immediately filed along with the leave to defend application. It is submitted that there was no negligence, much less any gross negligence or dilatory tactic, on the part of the petitioner in not filing leave to defend within stipulated time, but for the reasons set out in the application, and so also, the fact that settlement talks were ongoing between the parties, the defendant could not file the leave to defend application within the stipulated time.
4.3. Learned advocate Mr. Anuj would submit that, as per established legal principles, the rule of procedure is the Page 3 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined handmaid of justice, and the Trial Court is required to avoid a hyper-technical approach.
4.4. Lastly, Mr. Anuj would submit that, upon payment of reasonable cost, the defendant may be allowed leave to defend application as it is ready and submitted the same alongwith the application.
4.5. Making the above submission, learned advocate Mr. Anuj requested this Court to allow the present application.
5. Per contra, learned advocate Mr. Tejas, appearing for the respondent, would vehemently object this application, contending inter alia that neither days of delay nor any proper explanation coming forth on the part of the defendant when filed the impugned application. It is submitted that the so-called talks of settlement between the parties are not factually correct, inasmuch as adjournment applications filed before the Trial Court were not served upon the plaintiff. 5.1. Learned advocate Mr. Tejas would further submit that the defendant was required to file leave to defend within the Page 4 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined stipulated time, as the plaintiff had filed a summary suit for recovery of Rs.66,50,648/-. It is submitted that the Trial Court has correctly observed the conduct of the defendant, thereby closed the right of the defendant, which should not be reopened as it would amount to encouraging a litigant who has remained silent for a quite long time. 5.2. Lastly, learned advocate Mr. Tejas would submit that if this Court grants indulgence in favor of the petitioner, apart from imposing costs, the Trial Court may be directed to decide the summons for judgment and the leave to defend application within the stipulated time, as the suit in question was instituted in the year 2018, and as such, the plaintiff is deprived of the fruits of such litigation. 5.3. Making the above submission, learned advocate Mr. Tejas would request this Court to reject the present application.
6. Having heard the learned advocates appearing for the respective parties and after going through the order, prima Page 5 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined facie, it appears that the Trial Court has taken a very hyper- technical approach while rejecting the impugned application.
7. It requires to be observed that the summary suit came to be filed in the month of March, 2018, the defendant appeared on 02.05.2018, and thereafter, the summons for judgment came to be filed on 25.06.2018. The adjournment applications submitted on the record of this case indicate that there were some talks of settlement ongoing between the parties.
8. It is true that such fact is disputed by the plaintiffs, but they are unable to controvert the fact that such filing of the adjournment application was duly informed to the learned advocate of the plaintiff over the phone. Thereafter, on two or three occasions, on similar lines, the adjournment was sought for and granted by the Trial Court.
9. It further appears that on 16.08.2018, when the advocate of the defendant was not present and had not filed any adjournment application, the right to file leave to defend was closed by the Trial Court.
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NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined
10. It is further noticed by this Court that within no time, on 21.08.2018, the impugned application below Exhibit 15 prepared and came to be filed on 27.09.2018, by the original defendant, requesting the Trial Court to reopen his right to file leave to defend and so also, annexed the copy of leave to defend application demonstrating his bona fides that there was no ill intention on the part of the defendant to derail the proceeding.
11. If all these facts are taken into account by this Court, it would suggest that there is neither negligence nor any mala fide intention on the part of the defendant to derail the trial of the suit, inasmuch as summary suit.
12. Time and again, the Hon'ble Supreme Court in its various decisions has propounded that the rule of procedure is the handmaid of justice, and a hyper-technical approach requires to be avoided by the Trial Court while dispensing with justice.
13. It is a well-settled legal position that the rule of procedure is a handmaid of justice, and a hyper-technical Page 7 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 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)
14. At the same time, it is also required to be observed that to some extent, the defendant would be responsible for the delay in the adjudication of the summons for judgment/leave to defend, and because of his fault, the respondent/plaintiff is required to travel up to this Court.
15. Having so noticed hereinabove that the right of the defendant to file leave to defend requires to be protected; at the same time, the interest of the plaintiff also requires to be Page 8 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined taken note of by this Court. So, the petitioner is required to pay a sum of Rs.15,000/- as costs to the plaintiff as a condition to file leave to defend in the suit. In view of the aforesaid, I pass the following order:-
15.1. The upshot of the aforesaid observations, discussions, and reasons is that the impugned order dated 29.11.2018, passed by the City Civil Court No.19 of Ahmedabad city below Exhibit 15 in Summary Suit No.545 of 2018, is hereby quashed and set aside.
15.2. The impugned application filed below Exhibit 15 in aforesaid suit, is allowed on the condition that the petitioner shall pay a sum of Rs.15,000/- within a period of two weeks from today to the respondent/plaintiff.
15.3. Once, such cost is paid to the plaintiff by the defendant, the leave to defend submitted by the petitioner / defendant shall be taken on record and given an exhibit.
15.4. Thereafter, after giving a reasonable opportunity of hearing to the plaintiff as well as the defendant, the Trial Page 9 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025 NEUTRAL CITATION C/SCA/624/2019 ORDER DATED: 25/09/2025 undefined Court shall decide the summons for judgment and leave to defend in accordance with law as early as possible, preferably on or before 29.11.2025.
15.5. It is open for the parties to file additional replies to their pleadings.
16. In view of the above, the present application is hereby allowed with the aforesaid costs. Rule is made absolute accordingly.
(MAULIK J.SHELAT,J) MOHD MONIS Page 10 of 10 Uploaded by MOHD MONIS(HC01900) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 23:33:07 IST 2025