Umesh Arvind Bhatt vs Bashirkhan Ibrahimkhan
2021 Latest Caselaw 4156 Guj

        C/SCA/18821/2019                                        JUDGMENT



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18821 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                             UMESH ARVIND BHATT
                                    Versus
                           BASHIRKHAN IBRAHIMKHAN
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Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 15/03/2021
                               ORAL JUDGMENT

1. Heard learned Advocate Mr. R.D.Kinariwala for the Petitioner / Original Defendant and learned Advocate Mr. Manan A. Shah for the Respondent / Original Plaintiff at length on 5.3.2021.

2. The Petitioner / Original Defendant has filed this Petition under Article 226 and 227 of the Constitution of India as well as under the Code of Civil Procedure challenging the orders dated;

       (i)      3.9.2019 passed below Application Exh. 69;

       (ii)     29.7.2019 passed below Application Exh.66; and





     C/SCA/18821/2019                                     JUDGMENT



  (iii)    29.7.2019 passed below Application Exh.67

in Special Civil Suit No. 130 of 2014, whereby the learned 15th ASCJ, Surat has rejected the Applications of the Petitioner / Original Defendant for re-opening the stage of cross-examination of the Respondent / Original Plaintiff.

3. Learned Advocate R.D.Kinariwala for the Applicant / Original Defendant has drawn the attention of this Court to the previous orders passed by the learned Trial Court and also the order passed by Hon'ble Apex Court in the SLP and agreed that the SLP is dismissed, but, simultaneously has also drawn the attention of this Court that even in the adjournment application, they have just mentioned that the limitation period for filing SLP was shown, but, unfortunately, the learned Trial Court has has observed as under:

"Heard the witness is present today, after the adjournment application was given which was rejected by this court, this present application is given. Thus, it seems that the learned Advocate is trying to willfully linger the matter. It is well settled principle that such application cannot be entertained when witness is present and can only be taken into consideration after the witness is cross-examined. It appears that the present application is baseless and is filed for lingering the matter. Hence, repeated, the right of cross examination of plaintiff is hereby closed."

Further, learned Advocate Mr. Kinariwala has also drawn the attention of this Court that he has prepared to conduct this matter day-to-day even if any cost is imposed upon him. The fact remains that he desirous to proceed with the matter on merits and he has also drawn the attention of this Court to the page No. 73, which is the application by the learned Advocate for the Petitioner / Original Defendant praying that the concerned learned advocate desirous to relieve him from the matter. Therefore, his intention was informed to the client as per the procedure, and therefore, also in fact, on

C/SCA/18821/2019 JUDGMENT

both the occasions, it was not the intention of learned Advocate for the Petitioner / Original Defendant to drag the matter, but unfortunately, on both the days i.e. on 03.09.2020 and 20.09.2019, the learned Trial Court has disallowed the application, and therefore, learned Advocate Mr. Kinaraiwala has requested this Court to quash and set aside the order passed by the learned Trial Court. In the alternative, he has prayed that with any exemplary cost, he is prepared to conduct the matter on day-to-day basis.

4. Per contra, learned Advocate Mr. Manan Shah has heavily opposed the present Petition and submitted that pursuant the orders passed by the learned Trial Court and pursuant to the application before the learned Trial Court, it clearly transpires that the Petitioner / Original Defendant is intentionally dragging the matter, and therefore, the order passed by the learned Trial Court is not required to be interfered with. Learned Advocate Mr. Manan Shah has also placed reliance upon judgment of the Hon'ble Apex Court in case of M/S Bagai Construction Tr.Prop vs M/S Gupta Building Material Store, reported in 2013 (14) SCC 1, wherein it was held that once the evidence is commenced in that case, the Court is required to proceed at earliest and here also Court is required to proceed at the earliest to adduce the evidence, and therefore, also the order passed by the learned trial court is not required to be interfered.

5. Learned advocate Mr. Manan Shah has also placed reliance upon the judgment of the Hob'ble Apex Court in the case of Ram Rati vs Mange Ram (D) Thr Lrs. & Ors, reported in 2016(11) SCC 296, wherein, the ratio is that normally adjournment should not be given in normal course so that trial may not be dragged.

Learned advocate Mr. Manan Shah has therefore prayed to dismiss the petition by confirming both the impugned orders passed by the learned Trial Court.

C/SCA/18821/2019 JUDGMENT

6. Having heard the arguments advanced by both the sides, it is seen that pursuant to Exh.67 (Annexure-F), learned Advocate for the Petitioner / Original Defendant has specifically stated that he is likely to be relieved from the said proceedings and he has already send the information through Registered Post and therefore prayed for adjournment but the learned Trial Judge has not considered this aspect. It is also stated in the Application that the Hon'ble Supreme Court has also considered this aspect and dismissed the prayer of the Petitioner / Original Defendant. It is also contended by the learned Advocate for the Petitioner / Original Defendant that the prayer for adjournment was to the extent that the said proceedings be stayed till the end of limitation period for filing Special Leave Petition before the Hon'ble Apex Court considering the date of information and the order passed by this Court dated 17.6.2019 in Special Civil Application No. 4072 of 2019.

7. It is true that as per the judgment in the case of Bagai Construction Through its Proprietor Mr. Lalit Bagal v. Gupta Building Material Store reported in 2013 (0) AIJEL-SC 5274, wherein it is held that once the evidence is commenced the court is required to proceed with the case at the earliest. But in the present case, the Application was given to the effect to stay the suit proceedings till the end of the limitation period for filing the Special Leave Petition before the Hon'ble Supreme Court considering the order dated 17.6.2019 passed by this Court in Special Civil Application No. 4072 of 2019. Therefore, adjournment was sought on the basis of the limitation period which is given under the Supreme Court Rules, which is for 60 days. Further, it is also on record that at Exh.67, (Annexure-F), whereby the learned Advocate for the Petitioner / Original Defendant has specifically submitted that he has no instructions from his client for proceeding with the Suit and he has already sent such notice through Registered Post. Therefore, on that ground he has sought the adjournment.

C/SCA/18821/2019 JUDGMENT

8. It is true that the Hon'ble Supreme Court in the Special Leave Petition filed by the Petitioner herein has not interfered in the order passed by the learned Trial Court and the SLP is dismissed. The learned 15th ASCJ, Surat has also observed in the order that 'sufficient cause' should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. But, simultaneously in the present case, in view of the special facts and circumstances of the case, wherein the learned Advocate has moved for relieving himself from the proceedings. Upon such premises this court is of the opinion that the parties should not have any injustice due to procedural aspect.

9. Therefore, upon such two premises, it appears that if one opportunity is given to the Petitioner / Original Defendant by imposing exemplary cost, the same would meet the ends of justice. Therefore, the Petition deserves to be allowed with exemplary cost. Accordingly the petition is allowed. The Order dated 3.9.2019 passed below Application Exh.69 and the order dated 29.7.2019 passed below Application Exh.66 in Special Civil Suit No. 130 of 2014 by the learned Trial Court, are hereby quashed and set aside.

The Petitioner / Original Defendant shall bear the cost of Rs.10000/-

(Rupees Ten thousand only) which shall be paid to the Respondent /

Original Plaintiff, at trial court.

Direct service is permitted by e-mail / fax / any other electronic

mode.

(A. C. JOSHI,J) J.N.W