Subhavatidevi Ramdular Harijan vs Jitendrakumar Vasantram Harijan
2021 Latest Caselaw 15738 Guj

    C/SCA/15091/2021                            ORDER DATED: 06/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 15091 of 2021
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                   SUBHAVATIDEVI RAMDULAR HARIJAN
                               Versus
                  JITENDRAKUMAR VASANTRAM HARIJAN
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Appearance:
MR. RAJENDRA D JADHAV(10026) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 06/10/2021

                             ORAL ORDER

By way of preferring this petition, the petitioners have challenged the order dated 28.7.2021 passed below applications Exhs. 51 and 52 in Regular Civil Suit No. 464 of 2018 by the learned 2nd Additional Senior Civil Judge, Surat whereby, the trail Court imposed the cost of Rs.25,000/- to reopen the right to cross examine, lead evidence and right to reply in the main Regular Civil Suit and in contempt application respectively.

Heard learned advocate for the petitioners.

The brief facts leading to the present case is as under:- The respondent filed a Regular Civil Suit No. 464 of 2018 before the Court of 2nd Additional Senior Judge, Surat under the provisions of Section 34, 37, 38, 31 and 22 of the Specific Relief Act against the petitioners . That, the said Civil Suit was pending for trial before the court of learned Civil Judge at the

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stage of cross-examination and to lead the respondent's evidence. That, on 15.3.2021, when the Court was resumed for physical functioning after long time of suspension of physical functioning due to prevailing crisis of Covid-19 pandemic, plaintiff filed contempt application and advocate for the respondent filed application for time. Therefore, the next date was given for filing reply to the contempt application and making cross examination on 26.3.2021. That on 26.3.2021, the advocate for the respondent not being well as he was suffering from multiple health issues, had to seek time on medical ground therefore, the case was adjourned to 15.6.2021. That, however on 15.6.2021, due to confusion and misunderstanding about the date of hearing as the petitioners were not aware with the correct date of hearing, petitioners and advocate for the petitioners could not remain present nor they file any exemption application and / or application for time on the date of hearing. Therefore, petitioners not being present before the learned trial Court, learned Civil Judge was pleased to mark the absence of the petitioners and further to close the right of the petitioners to make cross examinations of the plaintiff's witnesses and to file reply to contempt application. The learned Senior Civil Judge was pleased to adjourn the same on 28.6.2021 for arguments. That, on the said i.e. on 28.6.2021 also none was present on behalf of the

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petitioners therefore, learned Civil Judge was pleased to fix it on 7.7.2021 for arguments of the petitioners. However, on the next date i.e. 7.7.2021, the application for opening of rights of the petitioners to cross examination and to file reply in contempt application was preferred. That, both the applications of the petitioners came to be exhibited at Exh. 51 and Exh. 52 in the main Regular Civil Suit No. 464 of 2021. That, on 28.7.2021, learned Senior Civil Judge was pleased to pass the combined order in both the applications whereby the applications of the petitioners were conditionally allowed on deposit of Rs.25000- with TLSC within a period of 5 days from the date of order. That, the court was pleased to direct that no exemption application for time be filed and attend the Court proceedings on the day fixed for hearing. Being aggrieved and dissatisfied by the impugned order, this petition.

Learned advocate appearing for the petitioners submits that the order passed by the Court below is bad in law and contrary to the facts and circumstances of the case to the extent of imposing such unjustified condition to deposit huge amount. That, the Court below ought not to have passed such order imposing the exorbitant costs, which restricts the litigant from contesting proceedings with the case. That, the Court below has grossly erred in passing conditional order i.e. opening the stage of cross examination and reply in the

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contempt application upon deposit of Rs.25000/- . Therefore, the impugned order cannot be sustained and may kindly be quashed and set aside. That, learned Civil Judge was not justified in passing the order to close the right of the petitioners on 15.6.2021 which is in contravention of law. That, the petitioners were expecting for fair chance to contest the matter pending for trial, before the learned Civil Judge, hence they preferred two different applications praying for opening the rights of petitioners to cross examine and lead the evidence in the main Regular Civil Suit and to file reply in the contempt application filed by respondent. The applications came to be exhibited at Exh. 51 and 52 respectively. That, for the reasons as stated when the petitioners were not able to cross examine and lead evidence in support of their case restraining the petitioners from filing reply in contempt application is nothing but the gross abuse of powers, by learned Civil Judge as the same is in contravention of principal of natural justice. Therefore it would not tenable or maintainable if the same is passed erroneously. That, the petitioners are not running away from the fact that they did not remain present on two occasions, when the case was listed for hearing, owing to miscommunication and confusion arising out of dates of hearing. That after a period of almost one and half years courts were resumed to physical functioning and during this period,

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there were many unforeseen difficulties were faced by the advocates and the parties. Therefore bonafide absence in proceedings on two occasions may not affect the case of the petitioners by closing the rights. Therefore the order of closing the rights of the petitioners for not being present in the court owing to difficulties would not sustain as the same is prejudice and make the case of petitioners bad. That, the petitioners have merits and materials to contest therefore without having the fair opportunity to conduct and contest the case before the trial court would lead to losing the case, therefore the fair chance and opportunity ought to have been afforded without imposing any condition to deposit such huge amount. Therefore, considering the fact that the interim order passed by Ld. Civil judge Surat is neither maintainable nor tenable and passed prejudicially which cannot be sustained and is liable to be quashed to the extent of perverse condition of depositing huge amount of Rs. 25,000/-. It is further argued that if the interim order is not quashed then in all likelihood the petitioners will loose the case and they are likely to suffer irreparable loss, damage and injury, which cannot be compensated.

Having heard learned advocate for the petitioners and considering the impugned order dated 28 th July 2021 along with application below Exh. 51 and 52 filed by the defendants, it appears that both the applications were allowed by the court

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below on a condition to deposit Rs. 25,000/- by the defendants/petitioners before the Taluka Legal Services Committee, Surat within a period of 5 days. From the facts of the case, it appears that Regular Civil Suit No. 464 of 2018 was fixed for recording evidence of the defendant no.2. On account of lock-down for certain period, physical functioning of the court below as closed, and thereafter, physical functioning of the court was started from 5th March 2021. On the very same day, application for adjournment was submitted by the defendants before the court below. The plaintiff filed an application under the provisions of the Contempt of Court Act. The Court fixed the said suit for filing objections of the application preferred by the plaintiff under the provisions of the Contempt of the Court Act and cross examination of the defendant no.2 on 26st March 2021. On the very same day, an application was submitted by the defendants before the court below to adjourn the matter on the ground that advocate appearing on their behalf was not well, and therefore, next date was fixed by the court below on 15 th June 2021. On the fixed date ie., on 15.06.2021, neither defendants nor their advocates were remained present before the court below, and therefore, the court was obliged to close their rights of cross examination of defendant no.2 and next date was fixed on 28 th June 2021. Again the repetition was continued by the

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defendants by remaining absent on 28th June 2021 and the matter was fixed for final arguments of the plaintiff on 7 th July 2021. On the very same day, an application was submitted by the defendants to open the rights to cross examination and written objections of the Contempt Application preferred by the plaintiff. Reasons were shown by the defendants in their application that there was misunderstanding of the date fixed by the court.

Honourable Supreme Court in AIR 2014 SC 746 in para 9 has observed as under;

9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The

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applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."

In AIR 2014 SC 1612 in para 11 Honourable Apex Court observed as under;

"11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."

The defendants, being party in the suit, has admittedly engaged his advocate to represent themselves before the court on their behalf. It was the duty of the defendants or their advocate to remain present and cooperate the court below in Regular Civil Suit No. 464 of 2018 when it was known to them that matter was fixed for cross examination before the lock down. It was also known to them that physical functioning of

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the court was started on 5th March 2021, however, application was submitted to adjourn the matter by the defendant no.2 on 5th March 2021. It was also known to the defendants that an application under the provisions of the Contempt of Court was filed by the plaintiff and court had fixed the next date on 26 th March 2021 for filing written objections by the defendants in respect of the application of Contempt preferred by the plaintiff. It was also known to the defendants and their advocate about the next date fixed by the court, and therefore, on 26th March 2021, application was submitted by the defendants that their advocate was not well and defendants remained absent for cross-examination. The trial Court fixed the next date of hearing on 15th June 2021. It appears from the order passed by the learned Trial Court that neither the defendants nor their advocate were remained present, and therefore, their rights were closed by the court below and next date was fixed on 28th June 2021. Again the repetition was continued by the defendants by not remaining present before the court below. The case was fixed for final arguments of the plaintiff on 07.07.2021 and on the very same day, application Exh. 51 and Exh. 52 were submitted by the defendants to open their rights to cross examine and for filing written objections of the contempt application. As negligency was shown by the defendants in remaining present before the court below in the

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proceedings of Regular civil Suit No. 464 of 2018, however court below has shown liberal view by granting these two applications with a condition to deposit Rs. 25,000/- before the Taluka Legal Services Committee, Surat within a period of 5 days. Thus, such order cannot be said to be illegal or perverse. The tendency of adjourning civil matter before the court below by the litigant without any cogent reason cannot be permitted by the court and rightly decided by the court below in the instant case.

However, defendants are permitted to cross examination and filing their written objections of the contempt application preferred by the plaintiff then they are bound to comply with the order by depositing Rs. 25,000/- as ordered by the court below.

The discretion exercised by the court below cannot be interfered in a petition preferred by the present petitioners under Article 226 and 227 of the Constitution of india as it cannot be said to be illegal or perverse.

In view of the facts and circumstances of the case and the above cited judgments, this Court does not find any fault with the impugned order, this petition bereft of merits, accordingly stands dismissed.

(B.N. KARIA, J) BEENA SHAH