Gujarat High Court

Anjana Ignesh Macwan vs Vijay Subhashbhai Panchal on 26 April, 2023

Bench: Sandeep N. Bhatt

      C/SCA/459/2023                              ORDER DATED: 26/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 459 of 2023

==========================================================
                         ANJANA IGNESH MACWAN
                                  Versus
                       VIJAY SUBHASHBHAI PANCHAL
==========================================================
Appearance:
MR DIPAN A. DESAI(2481) for the Petitioner(s) No. 1
MR THRUV THAKKAR, ADVOCATE for
MR NIRAV V PARGHI(8032) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 26/04/2023

                             ORAL ORDER

1. The present petition is filed by the petitioner -

original defendant challenging the impugned order passed

below Exh.17 in Regular Civil Suit No.28 of 2022 dated

29.09.2022 by the Principal Senior Civil Judge, Jhalod, by

which, the application filed under Order XIV Rule 5 of the

Code of Civil Procedure, 1908 to add the issues, is rejected.

2. The brief facts of the petitioner's case are as

under :

2.1 The petitioner had borrowed Rs.2,50,000/- from the

respondent on interest @ 5% in the year 2014. Against

which, the petitioner has issued advance cheques to the

C/SCA/459/2023 ORDER DATED: 26/04/2023

respondent for security. The petitioner was regularly paying

the interest to the respondent.

2.2 Due to weak economical condition, the petitioner

could not repay the amount, the respondent has deposited the

said cheques in the bank, which got dishonoured.

2.3 Therefore, the respondent has filed 09 separate

complaints under Section 138 of the Negotiable Instruments

Act, 1881 before the learned Judicial Magistrate, First Class,

Jhalod being Criminal Case Nos.922 of 2018 to 930 of 2018.

2.4 The respondent has approached the petitioner on

his own and intended to compromise the said cases, for

which, the petitioner was agreed.

2.5 The respondent took signatures of the petitioner on

ten blank papers and also took four blank cheques from the

petitioner.

2.6 As averred, the respondent prepared compromise

purshis on the said documents on which the petitioner has

signed in blank papers and produced before the competent

Criminal Court in the Lok Adalat at Exh.4. The respondent

has thereby unconditionally withdrawn the cases and the

Court has disposed of all the cases in the Lok Adalat on the

C/SCA/459/2023 ORDER DATED: 26/04/2023

basis of the said compromise purshis and acquitted the

petitioner from the charges levelled against her.

2.7 As further averred, the petitioner was unaware

about all the proceedings, as no notice was served to the

petitioner qua the said criminal cases.

2.8 Relying upon the said compromise purshis, the

respondent has filed Summary Suit No.01 of 2021 against the

petitioner before the Principal Senior Civil Court, Jhalod

seeking recovery of an amount of Rs.10,25,000/- with interest

at the rate of 24%, total of which would come to

Rs.14,76,000/-.

2.9 When the notice of that summary suit is served to

the petitioner, at that time, the petitioner came to know

about all the facts. Therefore, the petitioner has filed an

application for leave to defend in that summary suit at

Exh.19, which was allowed by the trial Court.

2.10 The petitioner thereafter filed a written statement

in the said suit proceedings stating therein the actual facts.

2.11 Simultaneously, the petitioner has filed Revision

Applications being Criminal Revision Applications No.172 of

2021 to 180 of 2021 before the Sessions Court against the

C/SCA/459/2023 ORDER DATED: 26/04/2023

order passed in the Criminal Case Nos.922 of 2018 to 930 of

2018, which are rejected by the Sessions Court observing that

order is passed in the Lok Adalat and therefore, the same

cannot be challenged in appeal or revision as per the

provisions of the Legal Services Authorities Act, 1987.

2.12 The Summary Suit thereafter converted into

Regular Civil Suit No.28 of 2022.

2.13 The trial Court has framed five issues at Exh.14.

2.14 The petitioner has filed an application Exh.17

under Order XIV Rule 5 of the Code of Civil Procedure, 1908

and thereby requested the trial Court to add more three

issues, which is rejected by the trial Court and therefore, the

petitioner is before this Court.

3. Heard learned advocates.

4.1 Mr.Dipan A. Desai, learned advocate for the

petitioner has submitted that the impugned order is unjust,

improper and erroneous in eyes of law.

4.2 He has drawn my attention towards the earlier

alleged withdrawal purshis filed before the Lok Adalat in the

matters being Criminal Case Nos.922 of 2018 to 930 of 2018,

C/SCA/459/2023 ORDER DATED: 26/04/2023

where there is a reference of alleged compromise. He has

further submitted that it is a specific case of the petitioner

that the petitioner has not signed any agreement or

document, but her signatures were taken on the blank papers

by the respondent. He has submitted that the petitioner has

challenged the said order passed by the trial Court in

Criminal Revision Applications No.172 of 2021 to 180 of 2021

before the Sessions Court, which were also not entertained on

the ground that the proceedings were finalised before the Lok

Adalat and therefore, the said Criminal Revision Applications

are not entertained.

4.3 He has thereafter drawn my attention towards the

application for leave to defend at Exh.19 filed in the

Summary Suit No.01 of 2021 filed by the respondent, where

specific averments are made regarding alleged compromise at

Exh.4.

4.4 He has further drawn my attention towards the

issues framed in the summary suit at Exh.14, whereby total

five issues are framed by the trial Court and thereafter, he

has drawn my attention towards the application at Exh.17

filed by the petitioner to add more three issues under Order

XIV Rule 5 of the Code.

C/SCA/459/2023 ORDER DATED: 26/04/2023

4.5 Thereafter, the trial Court, after hearing the

parties, has decided that the impugned order dated

29.09.2022 below Exh.17.

4.6 He has submitted that considering the pleadings of

the parties, the trial Court has to decide the real controversy

between the parties and accordingly, the Court has framed

the issues. He has further submitted that considering the

pleadings, more particularly the application for leave to

defend filed by the present petitioner, and the issues which

are suggested to add by way of application Exh.17 under

Order XIV Rule 5 of the Code, are required to be framed.

He has submitted that the trial Court has erred by wrongly

rejecting the application Exh.17 on completely untenable

grounds in the eyes of law. He has submitted that this is a

fit case for this Court to exercise the jurisdiction under

Article 227 of the Constitution of India by interfering in the

impugned order. He has submitted that this petition may be

allowed.

5. Per contra, Mr.Dhruv Thakkar, learned advocate for Mr.Nirav Parghi, learned advocate for the respondent has

submitted that the trial Court has properly considered the

various aspects of the matter. He has submitted that the

trial Court has rightly framed issue No.1, which pertains to

C/SCA/459/2023 ORDER DATED: 26/04/2023

cause of action, which is otherwise covered by the issues

framed earlier vide Exh.14 by the trial Court. Further, the

trial Court has rightly considered the issues No.2 and 3,

which can be decided by the appellate Court below, that

means by the higher forum, where the petitioner is required

to be challenged the order passed in criminal proceedings i.e.

Criminal Case Nos.922 of 2018 to 930 of 2018, and therefore,

he prays to dismiss this petition, as no perversity and there

is no reason to interfere under Article 227 of the

Constitution of India by exercising the powers by this Court.

6. I have considered the rival submissions made by

the learned advocates for the respective parties. I have

considered the material on record, including the application

for leave to defend. I have also perused the earlier issues

framed by the trial Court at Exh.14. I have perused the

impugned order passed by the trial Court.

7. From above, the following undisputed facts are

emerged before this Court :

7.1            Mainly, it is a dispute of money.


7.2            The       petitioner      has    borrowed      money        from        the

respondent. Against which, the petitioner has given some

C/SCA/459/2023 ORDER DATED: 26/04/2023

cheques in advance as security to the respondent.

7.3 The petitioner was unable to refund the money to

the respondent. Therefore, the respondent has deposited the

said chdques in the bank, which were dishonoured.

7.4 The respondent has no other alternative except to

approach the competent Court, which he has approached by

way of filing Criminal Case Nos.922 of 2018 to 930 of 2018

under Section 138 of the Negotiable Instruments Act, 1881.

7.5 Though the said cases were filed by the

respondent before the competent Court, but the respondent

could not get his money, he has approached the petitioner for

compromise.

8. The above are the undisputed facts, on which the

entire chronology is happened.

9. It is not the case of the petitioner up till now

that the petitioner has not borrowed the money from the

respondent. Further, it is not the case of the petitioner up

till now that the respondent is not liable to recover the

money from the petitioner.

10. The further chronology of events is little

C/SCA/459/2023 ORDER DATED: 26/04/2023

controversial between the parties, which are as under :

10.1 When the respondent approached the petitioner for

compromise in the said criminal cases, the petitioner was

ready and signed the documents. The petitioner has averred

that the respondent has taken her signature on the blank

papers, which cannot be believable.

10.2 At the same time, the benefit of the said so-called

compromise is given to the petitioner and on the basis of the

said so-called compromise, the petitioner got acquitted from

all the criminal charges levelled against her in the Lok

Adalat, by way of filing joint compromise purshis, by the

competent Criminal Court.

10.3 The said order was challenged by the petitioner

before the Sessions Court, which is rejected by the Sessions

Court and it has attained finality.

11. Considering the above controversial facts, it tilts

the balance in favour of the respondent not the petitioner.

12. Thereafter, on the basis of the said compromise,

the respondent has filed Summary Suit No01 of 2021 before

the trial Court, wherein the petitioner has filed an

application for leave to defend which was allowed and the

C/SCA/459/2023 ORDER DATED: 26/04/2023

petitioner has filed her written statement in the said suit.

Thereafter, the trial Court has framed the issues at Exh.14.

The petitioner has filed an application Exh.17 under Order

XIV Rule 5 of the Code of Civil Procedure 1908 and

requested the trial Court to add more three issues, which is

rejected by the trial Court vide its impugned order. It is this

order passed below Exh.17 application, which is challenged by

the petitioner before this Court.

13. The above facts mentioned and observations made

in paragraphs 7 to 11 are for the clarity of the case and not

qua the issue on hand.

14. The issue for determination before this Court is

that over and above the issues already framed by the trial

Court at Exh.14, the application Exh.17 filed by the

petitioner under Order XIV Rule 5 of the Code of Civil

Procedure, 1908, for adding the additional issues, which is

rejected by the trial Court, is required to be allowed or not.

15.1 At this stage, it is noted that the trial Court has

framed the following issues at Exh.14 :

                        (i)     Whether the plaintiff proves that

                                the defendant has given 9 cheques

                                of          Rs.10,25,000/-             towards





        C/SCA/459/2023                                            ORDER DATED: 26/04/2023




                                settlement?

                        (ii)    Does      the      plaintiff      prove       as      to

                                whether there is any legal dues of

                                plaintiff ?

(iii) Whether the defendant proves that

the plaintiff has received 9 cheques

from the defendant by committing

treachery and cheating ?

                        (iv)    Whether the plaintiff proves that

                                the plaintiff is entitled to get the

                                relief as prayed for in the plaint ?

                        (v)     What order and decree ?


15.2            The       petitioner     has      filed    an     application          Exh.17

under Order XIV Rule 5 of the Code of Civil Procedure,

1908, for adding the following additional issues :

                        (i)     Whether the order passed in the Lok

                                Adalat below Exh.4 can be said to be a

                                legal and proper order, which can be

                                relied upon in the suit.

                        (ii)    Whether         the       suit    preferred          by      the

                                respondent - plaintiff on the basis of

                                the    so-called         settlement        purshis          filed

                                before     the     Lok      Adalat,       which        is    not





       C/SCA/459/2023                                              ORDER DATED: 26/04/2023




                               approved         by         both      the         parties,          is

                               maintainable or not.

                       (iii)   xxx

16. In view of above noted facts and circumstances as

well as chronology of events, this Court finds that the trial

Court has rightly observed that issue Nos.2 and 3 are

ultimately connected with the earlier proceedings of Criminal

Case No.922 of 2018 to 930 of 2018, whereby the Chief

Judicial Magistrate Court at Jhalod, by way of Lok Adalat,

has disposed of the said proceedings, and regarding validity

and contents of the documents produced in those proceedings,

it can be examined by the higher forum.

17. It is noted that the said order is challenged by

the petitioner way of Criminal Revision Applications, which

are not entertained by the Sessions Court on the ground that

such order is passed in Lok Adalat. Therefore, the only

remedy available with the petitioner is to approach this

Court by way of the present petition, which is well settled in

view of recent judgment of Hon'ble Apex Court.

18. At this stage, it is required to consider the

provisions of Order XIV Rule 5 of the Code of Civil

Procedure, 1908, which is as under :

C/SCA/459/2023 ORDER DATED: 26/04/2023

" Order XIV - Rule 5 : Power to amend and strike out, issues.--

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.