Dilipbhai Ravlabhai Chaudhary vs Balkrushna Chhaganbhai ...
2023 Latest Caselaw 3211 Guj

     C/SCA/7091/2023                           ORDER DATED: 24/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7091 of 2023

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                    DILIPBHAI RAVLABHAI CHAUDHARY
                                 Versus
                 BALKRUSHNA CHHAGANBHAI CHAUDHARY
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Appearance:
MR NIKUNT RAVAL FOR MR VIDIT S SHARMA(7365) for the Petitioner(s)
No. 1,2,3,4
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 24/04/2023

                            ORAL ORDER

1. This petition is filed against the order dated

28.3.2022 passed by the learned Principal Senior Civil

Judge, Vyara below Exh.68 in Regular Civil Suit No.42

of 2019, by which the application under Order VIII Rule

1 of Code of Civil Procedure, 1908 (`CPC' for short) to

take written statement on the record is rejected.

2. The brief facts of the case are as such that

the respondent herein preferred Regular Civil Suit No.42

of 2019 on 29.6.2019 under Section 38 of the Specific

Relief Act, 1963 for reliefs, inter alia of the declaration

and permanent injunction, directing for non-interference

C/SCA/7091/2023 ORDER DATED: 24/04/2023

with the possession and usage of the property being

Survey No.344 Block No.319/2 of Village Ambiya, Taluka

Vyara, District Tapi. It is claimed in the suit that the

respondent being the tenant by virtue of proceedings

under Section 43 of the Bombay Tenancy & Agricultural

Lands Act, 1948 read with Section 73 of the Gujarat

Land Revenue Code, 1879 was the owner and the

petitioners herein attempted to take over the possession

of the agricultural land and therefore cause of action

arose and the suit was filed.

3. It is further case of the petitioners that the

suit was filed on 29.6.2019, the summons were issued

making the same returnable on 17.7.2019 and thereafter the matter was adjourned for some reason or other and

on 12.12.2019, the stage of filing reply was closed in

absence of the petitioners. After such closing stage, the

application Exh.5 was heard ex parte and rejected vide

order dated 10.1.2020. Thereafter, the issues were framed

on 14.12.2020. It is submitted that after the Covid-19

pandemic, the application Exh.68 was preferred by the

petitioners on 6.1.2022, however, the same was rejected

vide order dated 28.3.2022, which is challenged in this

C/SCA/7091/2023 ORDER DATED: 24/04/2023

petition. It is averred that by way of intra-court appeal,

the application Exh.5 was granted.

4. Learned advocate Mr.Raval for the petitioners

submitted that the impugned order passed by the learned

trial Court is ex facie bad in eye of law and required to

be interfered with as the learned trial Court has not

properly considered the fact that the right to file written

statement was closed on 12.12.2019 and thereafter the

issues were framed and in between, there was a period

of Covid-19. It is submitted that at the stage of

evidence, it came to the knowledge of the petitioners

that the written statement is required to defend the suit

in proper manner. He has further submitted that in view of the provisions of Order VIII Rule 1,2 and 3, the

impugned order passed by the learned trial Court is

without justifiable reasons.

5. In support of his submissions, he has relied on

the judgment in the case of A.V.Purushotam V/s N.K.Nagaraj reported in ILR 2003 KAR 2459, more

particularly, paragraphs 9 and 10 of the same and

submitted that the Court can grant liberty to file written

C/SCA/7091/2023 ORDER DATED: 24/04/2023

statement at any stage of suit by imposing appropriate

conditions. He has further submitted that since no

prejudice will be caused to the respondent-plaintiff if

such permission is granted, this petition is be allowed

even by imposing cost on the petitioners, in the interest

of justice.

6. I have perused the impugned order passed by

the learned trial Court, the copy of the plaint and also

the application filed by the petitioners at Exh.68. On

perusal of the same, it transpires that the application

Exh.68 is filed in a very brief manner by pointing out

that the right of the defendants is closed by the Court

and the matter is at present at the stage of recording of evidence and therefore, the prayer was made to reopen

the right to file written statement which was closed in

the year 2019. It is recorded in the impugned order by

the learned trial Court that the stage of filing reply was

closed on 12.12.2019 and thereafter the matter was kept

for hearing of Exh.5 application, which was rejected after

hearing the parties, the issues were framed thereafter

and thereafter the evidence is commenced and the

deposition of the plaintiff was recorded and the cross-

C/SCA/7091/2023 ORDER DATED: 24/04/2023

examination on behalf of the petitioners-defendants was

done at Exh.49, the present petitioners who are the

original defendants have cross-examined the witness of

the plaintiff at Exh.56 and thereafter by way of pursis

at Exh.64, the evidence is declared closed. It is further

recorded that thereafter, the application for adjournment

was given at Exhs.65, 66 and 67 by the defendants as

the matter is kept for evidence of the defendants and at

that point of time, while preparing the affidavit for the

evidence on behalf of the defendants by way of

examination-in-chief, it came to the knowledge of the

present petitioners that the written statement is not

there on the record which will create prejudice to the

rights of the defendants and therefore, such application is filed at Exh.68, which contention is very well dealt

with by the learned trial Court by saying that this will

certainly create prejudice to the right of the plaintiff

considering the stage where the petitioners have

participated in the process of leading evidence. On the

contrary, it can be said that the petitioners have waived

their right to file their written statement by participating

in the process of recording the evidence by cross-

examining the witness.

C/SCA/7091/2023 ORDER DATED: 24/04/2023

7. At this stage, the provisions of law of Order

VIII Rules 1,2 and 3 of CPC are relevant to be

considered which read as under:

"1. Written statement. The defendant 4 [*] shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. [Provided that the period allowed for filing the written statement shall not ordinarily exceed 3 [thirty] days.] ["Provided further that not more than two adjournments shall be granted for presenting the written statement"].

2. New facts must be specially pleaded. The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

3. Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages."

C/SCA/7091/2023 ORDER DATED: 24/04/2023

8. At this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment

Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181, whereby the Apex Court has said that supervisory

jurisdiction of High Court when to be exercised, more

particularly, paragraph 15 to 17 which read 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 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, 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

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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. 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 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

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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 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

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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."

9. In view of the above discussion and considering

the material available on the record and the provisions

of law, I am of the opinion that there is no perversity

or illegality committed by the learned trial Court while deciding the application Exh.68 and passing the

impugned order and therefore there is no reason to

interfere with the same by exercising the powers under

Article 227 of the Constitution of India. Accordingly, this

petition is dismissed. No order as to costs. It is always

open for the petitioner to participate in the proceedings,

if it is permissible under the law.

(SANDEEP N. BHATT,J) SRILATHA