New Shiddhivinayak Corporation vs Lalitaben Chhaganbhai W/O ...
2023 Latest Caselaw 2856 Guj

     C/SCA/4851/2023                                ORDER DATED: 11/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4851 of 2023

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                NEW SHIDDHIVINAYAK CORPORATION
                             Versus
        LALITABEN CHHAGANBHAI W/O BALWANTBHAI CHUNILAL
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Appearance:
MS VARSHA BRAHMBHATT, ADVOCATE for
MR POOJA H BHARDWAJ(7844) for the Petitioners
MR VIRAT G POPAT(3710) for the Respondent(s) No. 1,2 on caveat
for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 11/04/2023

                             ORAL ORDER

1. The present petition is filed by the petitioners -

original defendants No.1 and 2 under Article 227 of the

Constitution of India, challenging the impugned order dated 19.11.2022 passed below Civil Misc. Application No.162 of

2019 (for restoration) in Special Civil Suit No.406 of 2006 by

the 4 th Additional Senior Civil Judge, Surat, whereby the

trial Court has allowed the application for restoration filed by

original plaintiffs - respondents No.1 and 2 herein.

2. Learned advocate Ms.Varsha Brahmbhatt for

learned advocate Ms.Pooja H. Bhardwaj for the petitioners

has submitted that several litigation are filed between the

parties. She has pointed from the application for restoration

C/SCA/4851/2023 ORDER DATED: 11/04/2023

filed by present respondents No.1 and 2, more particularly

the averments made in paragraphs 1 and 3 thereof and has

submitted that respondents no.1 and 2 were aware about the

fact that now every Courts are updating the status of each

case online, even then the application for restoration is filed

by making incorrect averments. She has further pointed out

from the copy of the rojkam that the trial Court has issued

notice to the parties for framing of issues and for leading of

evidence. Though served to the plaintiffs - respondents No.1

and 2, the Court has granted two adjournments and on

19.08.2019, the matter is kept for dismissal order and

accordingly, on 21.08.2019, the matter is dismissed for

default. She has further pointed out about the judgment of

this Court reported in 2012 (3) GLR 2565, which is cited at

the bar before the trial Court, wherein the Co-ordinate Bench

of this Court has taken a view that if any reasonable ground

is not stated in the application, the same should not be

granted. She has further submitted that considering the

provisions of Order IX Rule 4 and Order IX Rule 9 of the

Code of Civil Procedure, 1908 and considering the averments

made in the application, the impugned order passed by the

trial Court is erroneous and without properly appreciating the

facts on record and therefore, she prays to interference in the

impugned order by exercising the supervisory powers under

Article 227 of the Constitution of India. She has submitted

C/SCA/4851/2023 ORDER DATED: 11/04/2023

that this petition may be allowed.

3. Per contra, learned advocate Mr.Virat Popat for respondents No.1 and 2 - original plaintiffs No.1 and 2,

appearing on caveat, has submitted that the trial Court has

not committed any error, more particularly the plaintiffs have

filed the restoration application within a prescribed period of

limitation i.e. within 30 days. He has drawn the attention of

this Court towards operative part of the impugned order

where the trial Court has imposed cost on the plaintiffs and

directed the plaintiffs to deposit Rs.5,000/- before the District

Legal Services Authority, Surat and Rs.3,000/- to defendants

No.1 and 2. He has submitted that the trial Court has

further directed the plaintiffs to complete the pleadings by

adducing the evidence within a period of two months. He has

submitted that considering the totality of the facts and

circumstances and in the interest of justice, the trial Court

has passed the impugned order accordingly. He has further

submitted that pursuant to that order, the amount of

Rs.5,000/- has already been deposited by the plaintiffs before

the District Legal Services Authority, Surat. He has

submitted that therefore, there is no reason to interfere with

such discretionary powers vested by the trial Court in favour

of the plaintiffs, more particularly, when there is no reason

for the plaintiffs to delay the suit proceedings and even then

C/SCA/4851/2023 ORDER DATED: 11/04/2023

the trial Court has taken into consideration about the

expedite hearing of the suit proceedings. He has submitted

that no powers be exercised under Article 227 of the

Constitution of India in favour of the petitioners. He has

submitted that this petition may be dismissed.

4.1 I have heard learned advocates for the respective

parties. I have considered the rival submissions made by the

learned advocates for the respective parties. I have also

perused the impugned order passed by the trial Court. I

have also considered the averments made in the application

for restoration. Considering the reasoning assigned by the

trial Court, more particularly, para 6 thereof, where the trial

Court has rightly considered the provisions of Order IX Rule

4 and Order IX Rule 9 of the Code of Civil Procedure, 1908,

which are as under :

" O.IX R.4 : Plaintiff may bring fresh suit or Court may restore suit to file. - Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall

C/SCA/4851/2023 ORDER DATED: 11/04/2023

appoint a day for proceeding with the suit.

O. IX R.9 : Decree against plaintiff by default bars fresh suit. - (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

4.2 The trial Court has also considered the pleadings /

rojkam, which is disputed by the present petitioners and

without entering into that disputed facts, otherwise also,

keeping in mind the fact that there are several litigation

pending between the parties and the plaintiffs are residing in

a village and are ladies. The trial Court, while considering

the restoration application, has also considered some

negligence on the part of the present respondents No.1 and

2, who are the original plaintiffs and accordingly, the trial

Court has imposed cost of Rs.5,000/- which is deposited before

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the District Legal Services Authority, Surat and Rs.3,000/-

which is required to be paid to the defendants No.1 and 2 -

present petitioners.

4.3 Considering the totality of the facts and

circumstances of the case and considering the impugned

order, this Court finds that there is no error, much less

substantial error, committed by the trial Court, which cause

any prejudice to the rights of the present petitioners. On the

contrary, by granting such application, the trial Court has

rightly observed that the suit proceedings should be decided

on its own merits. The trial Court has also considered the

aspect of expeditious hearing of the suit by directing the

plaintiffs to complete the evidence within two months

thereafter.

4.4 Thus, considering the overall facts and

circumstances of the case and also considering the limited

scope of jurisdiction by this Court under Article 227 of the

Constitution of India, keeping in mind the observations made

by the Hon'ble Apex Court in the case of M/s. Garment

Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly para 15 to 17 thereof, this petition needs to be dismissed. The said observations read as under :

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"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 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

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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 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,

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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 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."

5. In view of above, no interference is called for

under Article 227 of the Constitution of India. This petition

is therefore dismissed.

C/SCA/4851/2023 ORDER DATED: 11/04/2023

6. Since the trial Court has already directed the

plaintiffs to complete the evidence, let the defendants may

also complete its evidence within a period of two months

thereafter and the trial Court to expedite the suit

proceedings as expeditiously as possible but preferably on or

before 31.10.2023.

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