Decd. Chimanlal @ Chimanji Fulaji ... vs Trishulam Co- Operative Housing ...
2021 Latest Caselaw 5272 Guj

        C/AO/67/2020                               JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/APPEAL FROM ORDER NO. 67 of 2020
                          With
       CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
         In R/APPEAL FROM ORDER NO. 67 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

     Whether Reporters of Local Papers may be allowed
 1                                                              NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                      YES

     Whether their Lordships wish to see the fair copy
 3                                                              NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution          NO
   of India or any order made thereunder ?

=======================================
   DECD. CHIMANLAL @ CHIMANJI FULAJI THROUGH HIS LEGAL
                               HEIRS
                              Versus
      TRISHULAM CO- OPERATIVE HOUSING SOCIETY LTD.
=======================================
Appearance:
MR PRATIK KHUBCHANDANI for M/S.VYAS ASSOCIATES(1559) for
the Appellant(s) No. 1,1.1,1.2,1.3
MS LILU K BHAYA(1705) for the Respondent(s) No. 1
=======================================

CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                       Date : 27/04/2021

                       ORAL JUDGMENT

1. This appeal from order under O.43 R.1(1)(c) of the Civil Procedure Code, 1908 (CPC) assails the order dated 12.02.2020

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passed by the learned Additional Judge, City Civil and Sessions Court, Court No. 25, Ahmedabad City in Misc. Civil Application No. 637 of 2019 by which, the restoration application filed by the present appellants came to be rejected.

2. Admit.

3. Facts in nutshell of the case on hand are that the appellants are the original plaintiffs, who had filed a civil suit being Regular Civil Suit No. 767 of 2007 for permanent injunction in the City Civil Court, Ahmedabad. The said suit came to be dismissed for default by virtue of an order passed below exhs. 1 and 88 dated 05.09.2019 for want of prosecution. Against the said order, the appellants - plaintiffs filed the aforesaid misc. civil application for restoration of the suit, however, the same came to be rejected vide order impugned herein.

4. Heard, learned advocate Mr. Pratik Khubchandani for M/s. Vyas Associates for the appellants and learned advocate Ms. Lilu K. Bhaya for the respondent.

4.1 The learned advocate for the appellants submitted that the impugned order is illegal, perverse and against the settled principles of law. It is submitted that the impugned order is passed without appreciating the purport of O.9 R.9 CPC inasmuch as the same is to be liberally considered. It is submitted that though sufficient cause was shown, the learned Court below has taken such a hyper-technical view in the matter. It is submitted that since the learned advocate representing the appellants - plaintiffs before the trial Court was not keeping well, he could not remain present before the Court concerned and the learned trial

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Court ought to have appreciated the said fact. It is further submitted that past conduct regarding default in appearing is not a criterion at all while considering the sufficient cause. It is submitted that the appellants have good case on merits and in the circumstances, it is prayed that the impugned order may be set aside and the suit may be ordered to be restored to its original file.

4.2 In support of his case, the learned advocate for the appellants has relied upon following decisions:

i) Smt. Garuda Sakuntala v. A.V.M. Jagga Rao (died) and Others, 2000 SCC Online AP 550;

ii) A. Murugesan v. Jamuna Rani, 2019 SCC Online SC 200;

iii) Jaswant Singh and Others v. Parkash Kaur and Another, (2018) 12 SCC 249;

iv) Ganesh Co-operative Housing Society Limited v. Ishwarbhai Keshavbhai Patel, 2002 (1) GLR 159.

5. As against this, the learned advocate for the respondent, with all vehemence at her command, opposed the present appeal and submitted that this is a case of suppression of material facts. She submitted that a person who does not come with clean hands and suppresses the material facts which go to the root of the case, and files such an application, may not be entertained. It is submitted that a person seeking equity must do equity. It is submitted that suppression of material facts amounts to intentionally misleading the Court. It is submitted that the appellants have produced the orders of 2004 to 2009 but have not produced the subsequent orders which are passed by the Court on 19.12.2011 or the order passed by this Court in 2013. It

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is submitted that intentionally, the said orders are not produced before this Court. It is further submitted that in 10 years old matter, the appellants had sought 17 adjournments. Further, from the facts, it is clear that the appellants have lost in revenue proceedings up to Secretary (Appeals) and at each and every level, this Court as well as the revenue authorities have decided against the present appellants.

5.1 Thus, making above submissions, it is urged that the present appeal may be dismissed with cost.

5.2 In support of her case, the learned advocate for the respondent has relied upon following decisions of the Hon'ble Apex Court:

i) K. D. Sharma v. Steel Authority of India Ltd. and Others, decided on 09.07.2008 in Civil Appeal No. 4270 of 2008 arising out of SLP (Civil) No. 17805 of 2006;

ii) Dalip Singh v. State of U.P. and Others, decided on 03.12.2009 in Civil Appeal No. 5239 of 2002;

iii) Kishore Samrite v. State of U.P. and Others, decided on 18.10.2012 in Criminal Appeal No. 1406 of 2012.

6. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the material available on record it appears that the appellants - plaintiffs had filed a civil suit being Regular Civil Suit No. 767 of 2007 seeking permanent injunction before the City Civil Court at Ahmedabad. The said came to be dismissed for default for want of prosecution by the learned trial Judge by an order dated 05.09.2019, passed below exhs. 1 and 88, on the grounds that

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though sufficient opportunity was given to the appellants - plaintiffs, they did not produce their evidence; neither the learned advocate for the plaintiffs nor the plaintiffs themselves remained present before the Court and that the suit is more than 10 years' old. The learned advocate for the appellants - plaintiffs has submitted that though sufficient cause was shown, the learned Court below has taken such a hyper-technical view in the matter. It is submitted that the learned advocate for the appellants before the trial Court was unwell and hence, could not remain present before the Court, however, the learned trial Court, without appreciating the said fact in true and proper perspective, dismissed the suit for default. He also submitted that the appellants have good case on merits and hence, prayed to restore the suit to its original file to which, the learned advocate for the respondent - defendant has heavily opposed and submitted that the appellants have not come with clean hands and have suppressed the material facts. She has submitted that the one who seeks equity must do equity and accordingly, she urged to dismiss the appeal.

6.1 If the impugned order is perused, it is observed by the learned trial Judge that though sufficient opportunity was given to the plaintiffs, they did not produce their evidence; neither the learned advocate for the plaintiffs nor the plaintiffs themselves remained present before the Court and that the suit is more than 10 years' old the appellants - plaintiffs have failed to show sufficient cause so as to restore the suit and accordingly, rejected the restoration application by the impugned order.

6.2 In the said backdrop, if the decision in Smt. Garuda Sakuntala (supra), as relied upon by the learned advocate for

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the appellants - plaintiffs is taken into consideration, it held therein that, 'Past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non- appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed. The Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15.2.1993 only, and not the previous conduct of the appellant. Hence, the contention of the counsel for respondents, that in view of the previous conduct of the appellant in not attending the court the lower court is right in dismissing the suit for default, cannot be accepted'. It is further held that, 'Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/plaintiff. When the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the court below to that effect. On this ground also, the order under appeal is liable to be set aside'. The Court has observed that, 'Dismissal of a suit for default of the plaintiff shall always be resorted to by the courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural

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laws are intended to do substantial justice between the parties and not to penalize the parties'. Thus, as observed in the aforesaid decision, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter and before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. In the case on hand also, the learned advocate representing the appellants - plaintiffs did not remain present as not keeping well and eventually, the suit came to be dismissed for default, however, no prior notice appears to have been issued to the appellants - plaintiffs.

6.3 In the decision in A. Murugesan (supra), rendered by the Hon'ble Apex Court, reference is made of the decision in G. P. Srivastava v. R. K. Raizada, (2000) 3 SCC 54, more particularly paragraph 7 thereof, relevant of which, is extracted herein:

"7. ....The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time...."

6.4 Thus, when absence is made out the ground for proceeding ex parte, it cannot be stretched to rely upon other circumstances anterior in time.

6.5 Adverting to the facts of the present case, the learned trial

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Judge has dismissed the suit for default for want of prosecution and by way of impugned order, also dismissed the application for restoration of the said suit. It was the case of the appellants - plaintiffs that since the learned advocate representing the case of the appellants - plaintiffs before the trial Court was not keeping well, he did not remain present before the Court on the date so appointed, however, the learned trial Judge did not appreciate the said fact and considering the past conduct viz. non- appearance of appellants - plaintiffs dismissed the suit for default observing that the suit is aged 10 years. It is settled law as reflected in the decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, indisputably, the learned trial Judge has taken into consideration the past conduct of the appellants - plaintiffs while dismissing the suit for default and admittedly, no prior notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect.

6.6 At this juncture, it would be apt to note herein, as is discernible from the record, that suit in question is of the year 2007, wherein, Issues have been framed in the year 2019 only, to be precise on 28.01.2019 i.e. after a period of more than 10

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years and thereafter, the suit is being dismissed for default on 05.09.2019, with one of the grounds that the suit is aged more than 10 years old, which appears to be something unjustifiable.

6.7 Further, the learned advocate for the respondent has heavily opposed this appeal saying that the appellants - plaintiffs have suppressed material facts and produced the orders from 2004 to 2009 only, however, have not produced the subsequent orders passed in 2011 and 2013. She has submitted that the appellants - plaintiffs have lost up to the level of Secretary (Appeals). She, accordingly, has submitted that one who seeks equity must do equity.

6.8 In this regard, if the concept of suppression of material facts is seen, it is settled position that suppression must be of such a nature that affects the final disposal of the case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction. In short, all those facts which are essential to clothe the petitioner with a complete cause of action are material facts, which must be pleaded, and failure to plead even a single material fact amounts to disobedience of law. In the instant case, the learned advocate for the respondent has pleaded suppression of material facts by the appellants, citing details of orders passed in 2011 and 2013 and subsequent events thereto, however, apparently, the events which are prior to the dismissal of suit for default in the year 2019. As said earlier, the material facts are the facts which are material for the purpose of

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determination of final determination. However, considering the facts which are stated to have been suppressed, do not appear to be the material facts, which may come in the way of final determination of the lis between the parties. It can, at the most, be termed as suppression of material particulars, which can be cured at a later stage by an appropriate amendment.

6.9 At this juncture, it would be worthwhile to refer to a decision rendered by the Hon'ble Apex Court in Arunima Baruah vs Union Of India & Ors., in Appeal (Civil) No. 2205 of 2007 dated 27.04.2007, wherein, it is observed as under:

"On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. [See Dwarka Prasad Agarwal (D) by Lrs. and Another v B.D. Agarwal and Others (2003) 6 SCC 230 and Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., 2007 (5) SCALE 357] A person who has a grievance against a State, a forum must be provided for redressal thereof. [See Hatton and Others Vs. United Kingdom 15 BHRC 259. For reference see also Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question.

It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of

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the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

In Moody v. Cox [1917 (2) Ch 71], it was held:

"It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a Court of Equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say "No, we are well satisfied with the contract; it is a very good one for us; we affirm it". The proposition put forward by counsel for the defendants is: "It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: "We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be equitable remedy." When one asks on what principle this is supposed to be based one receives in answer the maxim that any one coming to equity must come with clean hands. It think the expression" clean hands" is used more often in the text books than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of Equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea 1 Cox, 318 which has been referred to shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation

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to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant Hatt, appears to me to fail, and we have to consider the merits of the case."

In Halsbury's Laws of England, Fourth Edition, Vol. 16, pages 874- 876, the law is stated in the following terms:

"1303. He who seeks equity must do equity.

In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.

*** *** *** 1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief

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sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff's demerits."

[See also Snell's Equity, Thirtieth Edition, Pages 30-32 and Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others, (2006) 7 SCC 756] In Spry on Equitable Remedies, Fourth Edition, page 5, referring to Moody v. Cox (supra) and Meyers v. Casey [(1913) 17 C.L.R. 90], it is stated :

"that the absence of clean hands is of no account "unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for". When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands cannot properly be regarded as setting out a rule that is either precise or capable of satisfactory operation".

Although the aforementioned statement of law was made in connection with a suit for specific performance of contract, the same may have a bearing in determining a case of this nature also.

In the said treatise, it was also stated at pages 170-171:

"In these cases, however, it is necessary that the failure to disclose the matters in question, and the consequent error or misapprehension of the defendant, should be such that performance of his obligations would bring about substantial hardship or unfairness that outweighs matters tending in favour of specific performance. Thus the failure of the plaintiff to explain a matter of fact, or even, in some circumstances, to correct a misunderstanding of law, may incline the court to take a somewhat altered view of considerations of hardship, and this will be the case especially where it appears that at the relevant times the

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plaintiff knew of the ignorance or misapprehension of the defendant but nonetheless did not take steps to provide information or to correct the material error, or a fortiori, where he put the defendant off his guard or hurried him into making a decision without proper enquiry".

In S.J.S. Business Enterprises (P) Ltd. (supra), it was stated:

"14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable ( sic ), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 8. Therefore, the fact that a suit had already been filed by the appellant was not such a

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fact the suppression of which could have affected the final disposal of the writ petition on merits." There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter.

[See Jai Singh v. Union of India and Others, (1977) 1 SCC 1] But, where one proceeding has been terminated without determination of the lis, can it be said that the disputant shall be without a remedy?

It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated:

"6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expr ession is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as "interest reipublicae res judicatas non rescindi" but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court 'has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article

32."

[Emphasis supplied] Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and,

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therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts.

Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact.

In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India.

***"

6.10 It may be observed that present appeal has been preferred against an order dismissing the suit for default for want of prosecution and in the opinion of the Court, the aforesaid facts have no direct nexus to the subject matter of this appeal for the reason that they are far from the merits of the case. However, since much water has been flown on the said aspect, the Court went through the order passed in 2011 which is a common order dated 19.12.2011 passed by the learned Chamber Judge, Court No. 15, City Civil & Sessions Court, Ahmedabad below Notice of Motion exhs. 46/47 by which, it was prayed by the appellants - plaintiffs to take action against the defendant for disobedience of injunctive order and to grant status quo as well as mandatory

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order to restore the original position as existing on the date of filing of suit and Chamber Summons exhs. 56/57 by which, it was prayed to take action for breach of order of status quo passed on 25.11.2009. The learned Chamber Judge, after considering the facts and circumstances of the case and material on record, dismissed the said Notice of Motion as well as the Chamber Summons by aforesaid common order dated 19.12.2011. Against the said order, the appellants - plaintiffs preferred Appeal from Order No. 9 of 2012 with Civil Application No. 2276 of 2013 before this Court, and this Court, by way of CAV judgment and order dated 20.06.2013, dismissed the said appeal from order. The learned advocate for the respondent has also submitted that the appellants - plaintiffs have lost up to the level of Secretary (Appeals) level. However, for the sake of repetition, it is observed that present appeal is filed against an order of dismissal of suit for default which has no direct nexus with the aforesaid facts and cannot be said to come in the way of final determination of the subject matter of this appeal.

6.11 The only thing which is required to be seen at the moment is whether the trial Court is justified in passing such an order and whether, the cause canvassed by the appellants - plaintiffs can be said to be the sufficient cause or not. As noted in the preceding paragraph of this judgment, it was the case of the plaintiffs that since the learned advocate representing their case before the trial Court was not keeping well, he could not remain present. Further, in view of the above-referred decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a

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particular subsequent date i.e. the date on which the latest default is committed and hence, the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case also, no notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect. It is pertinent to note here that after the aforesaid orders passed in 2011 and 2013 respectively, the suit was proceeded further and the Issues were framed in the year 2019. At the cost of repetition, it may be observed that in the suit of 2007, the Issues have been framed in 2019, on 28.01.2019 and thereafter, the same came to be dismissed for want of prosecution in 2019, on 05.09.2019. Thus, in the considered opinion of this Court, the trial Court appears to have taken a very hyper-technical view of the matter. It is trite principle of law that every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities, unless technicalities are so predominant that they overshadow the merits of the matter. The aforesaid aspects can very well be taken into consideration while adjudication of the suit if trial Court deems it fit so in the given facts and circumstances of the case.

6.12 So far as the decisions relied upon by the learned advocate for the respondent are concerned, in K. D. Sharma (supra) it is observed in concluding paragraph that "In the case on hand, the appellant has not come with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed

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doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out.....". Further, in Dalip Singh (supra), it is observed in penultimate paragraph 21 that, "From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated reprehensible. They belong to the category of person who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority". Again, in Kishore Samrite (supra), it is observed in penultimate paragraph 54 that, "....(1) Writ petition No. 111/2011 was based upon falsehood, was abuse of the process of court and was driven by malice and political vendetta. Thus, while dismissing this petition, we impose exemplary costs of Rs.5 lacs upon the next friend, costs being payable to respondent no. 6. (2) The next friend in Writ Petition No. 125/2011 had approached the court with unclean hands, without disclosing complete facts and misusing the judicial process. In fact, he filed the petition without any proper authority, in fact and in law. Thus, this petition is also dismissed with exemplary costs of Rs.5 lakhs for abuse of process of the court and/or for such other offences that they are found to have committed....". Thus, a glance at the above decisions reveals that the same are mainly based on suppression of material facts. There cannot be any dispute as to

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ratio laid down in the same, however, since this Court has opined that in the case on hand, the facts, as stated by learned advocate for the respondent, cannot be termed as material facts, suppression of which could affect the final determination of the subject matter, in the opinion of this Court, the above decisions would be of no avail to the respondent.

7. In view of the aforesaid discussion and observations, present appeal deserves to be allowed, however, the appellants - plaintiffs will have to be saddled with exemplary costs.

8. For the forgoing reasons, present appeal succeeds and is allowed accordingly. The impugned order dated 12.02.2020 passed by the learned Additional Judge, City Civil and Sessions Court, Court No. 25, Ahmedabad City in Misc. Civil Application No. 637 of 2019, is hereby set aside and Regular Civil Suit No. 767 of 2007 is ordered to be restored to its original file.

8.1 The appellants - plaintiffs are directed to deposit a sum of Rs.25,000/- (Rupees Twenty Five thousand only) towards costs before the trial Court concerned within a period of 02 (two) weeks from the date of receipt of writ of this order, which the respondent is at liberty to withdraw, following due procedure.

8.2 Since the suit is of the year 2007, the trial Court concerned shall make all endeavour for expeditious disposal of the same and the parties are directed to cooperate with the trial Court in the same and shall not ask for unnecessary adjournments. The trial Court shall deal with and decide the suit uninfluenced by any order, on its own merits, in accordance with law.

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8.3     In view of the main appeal is allowed, civil application

therein for stay does not survive and stands disposed of accordingly.

[ A. C. Joshi, J. ] hiren