Naranbhai Mohanbhai Solanki vs Gauriben Chandravadan Parmar
2023 Latest Caselaw 2717 Guj

       C/SCA/5586/2023                                                 ORDER DATED: 03/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5586 of 2023

==========================================================
                          NARANBHAI MOHANBHAI SOLANKI
                                     Versus
                         GAURIBEN CHANDRAVADAN PARMAR
==========================================================
Appearance:
MR KISHAN N BRAHMBHATT(11382) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
==========================================================

     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 03/04/2023

                                     ORAL ORDER

1. The present petition is filed by the petitioner

challenging the common order dated 16.12.2022 passed below

Exh.15 - Summons for Judgment and below Exh.18 (Leave to

Defend) in Summary Suit No.284 of 2022 by the Small

Causes Court No.6, Ahmedabad, whereby the trial Court has

rejected the summons for judgment filed by the plaintiff vide

Exh.15 and allowed the leave to defend filed by the

defendant vide Exh.18 and thereby granted leave to defend

the suit unconditionally in favour of the defendant.

2. Learned advocate for the petitioner has submitted

that the trial Court has committed gross error in not

considering the provisions of Order XXXVII of the Code of

Civil Procedure, 1908 when the cheque is issued by the

C/SCA/5586/2023 ORDER DATED: 03/04/2023

father of respondents No.2 and 3 and husband of respondent

No.1, who has expired prior to filing of the suit. He has

further submitted that even from the application for leave to

defend, it transpires that the defendants are not disputing

the fact that the cheques are issued by the deceased person,

who happens to be the husband of respondent No.1 and

father of respondents No.2 and 3. He has further submitted

that when the promissory note is executed, at least some

conditions to deposit some amount is required to be imposed.

He has relied upon the various orders passed by the co-

ordinate Bench of this Court as well as the judgment of the

Hon'ble Apex Court. He has submitted that when the

transaction is covered by the some documents executed

between the parties and also followed by the cheques issued

by the parties, this Court should exercise the discretion in

favour of the petitioner by imposing some conditions. He has

further submitted that the respondents have also admitted

that the cheques in question are also issued in favour of the

petitioner towards the security and considering the aspect

that the respondents are not in a position to deny their

liability, some conditions are required to be imposed. He has

submitted that this petition may be allowed.

3.1 I have heard learned advocate for the petitioner. I

have gone through the material on record. I have also

C/SCA/5586/2023 ORDER DATED: 03/04/2023

perused the provisions of Order XXXVII of the Code of Civil

Procedure, 1908, which reads as under :

" ORDER XXXVII Summary Procedure.

[1. Courts and classes of suits to which the Order is to apply.--(1) This Order shall apply to the following Courts, namely :--

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) other Courts:

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits. namely:--

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,--

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.]

[2. Institution of summary suits.--(1) A suit, to which this Order applies, may if the plaintiff desires to

C/SCA/5586/2023 ORDER DATED: 03/04/2023

proceed hereunder, be instituted by presenting a plaint which shall contain,--

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and

(c) the following inscription, immediately below the number of the suit in the title of the suit, namely :--

"(Under Order XXXVII of the Code of Civil Procedure, 1908)."

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.]

[3. Procedure for the appearance of defendant--(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

C/SCA/5586/2023 ORDER DATED: 03/04/2023

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be. (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,--

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as

C/SCA/5586/2023 ORDER DATED: 03/04/2023

may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]

4. Power to set aside decree.--After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.

5. Power to order bill, etc., to be deposited with officer of Court.--In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

6. Recovery of cost of noting non-acceptance of dishonoured bill or note.--The holder of every dishonoured bill of exchange or promissiory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

7. Procedure in suits.--Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner."

C/SCA/5586/2023 ORDER DATED: 03/04/2023

3.2 I have perused the impugned order passed by the

trial Court. Considering the fact that the present suit is filed

against the heirs of the deceased borrower. The transactions

had entered into between the petitioner and the deceased

person and it is specifically averred in the application for

leave to defend and specific dispute is raised about the

issuance of cheques. As per the submission of the petitioner,

the said cheques were given to the petitioner towards

security and entire amount is required to be paid by the

deceased to the petitioner. At present, no amount is paid by

the heirs of the deceased to the petitioner. I have also

considered the disputed facts. The trial Court has dealt with

all the contentions raised by the rival parties in detail. After

considering the application for summons for judgment at

Exh.15 and documentary evidence Exh.4, leave to defend

application Exh.18 along with documentary evidence Exh.19

and rejoinder affidavit Exh.20, the trial Court has recorded

specific findings to that effect. The trial Court has come to

the conclusion after considering the promissory note dated

22.12.2014 produced on record. It is noted that the suit is

filed in the year 2022. The document, which is produced at

Mark 4/19, was given by the predecessor of the defendants

towards security purpose. The trial Court has observed that

qua the aspect of promissory note, whether it is within

C/SCA/5586/2023 ORDER DATED: 03/04/2023

limitation or not, which can be decided after taking proper

evidence on record and it cannot be decided without taking

any evidence.

3.3 Therefore, the trial Court has considered the

aspect of limitation as well as considered the disputed

position about the liability of the present respondents. The

trial Court has rightly come to the conclusion that the unconditional leave is required to be granted and the trial is

required to be completed on its own merits. It is not a fit

case to impose any condition considering the facts and

circumstances of the present case. Since the trial Court has

not committed any material error. This Court finds that no

interference is required to be made by this Court in the

impugned common order passed by the trial Court as it is

discretionary in nature in view of the decision of the Hon'ble

Apex Court in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181. The relevant observations are made in paras 15 to 17, which are

as under :

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High

C/SCA/5586/2023 ORDER DATED: 03/04/2023

Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the

C/SCA/5586/2023 ORDER DATED: 03/04/2023

duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting

C/SCA/5586/2023 ORDER DATED: 03/04/2023

relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

3.4 Thus, in view of above, no valid reason is found

by this Court to interfere in the impugned order. This

petition therefore needs to be dismissed.

4. In view of above, this petition is dismissed.

5. However, at this stage, the petitioner is prayed

C/SCA/5586/2023 ORDER DATED: 03/04/2023

that since the petitioner is more than 70 years age, the trial

Court may be directed to expedite the trial. Considering this

submission, it is open for the petitioner to make appropriate

application before the trial Court for expedite hearing of the

suit and the trial Court shall consider the same.

(SANDEEP N. BHATT,J) M.H. DAVE