Rajendrakumar Amrutlal Thakrar vs Keval Vinodbhai Pansara
2023 Latest Caselaw 6197 Guj

                                                                                   NEUTRAL CITATION




        C/SA/99/2023                               ORDER DATED: 23/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 99 of 2023
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
                                    In
                      R/SECOND APPEAL NO. 99 of 2023
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                       RAJENDRAKUMAR AMRUTLAL THAKRAR
                                    Versus
                           KEVAL VINODBHAI PANSARA
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Appearance:
MS MEGHA JANI(1028) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 23/08/2023

                                ORAL ORDER

1. This Second Appeal is directed against the order of the First Appellate Court passed in Regular Civil Appeal No. 73 of 2021, whereby, the learned District Judge, Jamnagar, vide its order dated 29.09.2022, was pleased to set aside the judgment and decree dated 04.03.2021 passed in Summary Civil Suit No. 36 of 2019 and remanded the matter to trial Court for deciding the suit afresh within 6 months on the ground that since the defendant had deposited 20% of the amount in Appeal, the matter shall be considered and decided on merits by the trial Court.

2. The appellant - plaintiff filed the aforesaid Summary Civil Suit for recovery of Rs.4,09,000/- against the respondent - defendant and applied for summons for Judgment vide Exh. 9. The defendant filed an application for leave to defend at Exh. 15, which was

NEUTRAL CITATION

C/SA/99/2023 ORDER DATED: 23/08/2023

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decided on 21.11.2019, directing the defendant to deposit 20% of the suit amount within 30 days and leave to defend conditionally was granted. The defendant did not comply the order of 20%, as a result, the appellate plaintiff moved an application for decree and same was allowed on 04.03.2021. The respondent defendant challenged the decree dated 04.03.2021 by preferring Regular Civil Appeal. The defendant - respondent pending the appeal, deposited 20% of the amount. The learned First Appellate Court, after considering the deposition of the amount, set aside the decree and remanded the matter to the trial Court to decide the suit afresh in accordance with law.

3. Ms. Megha Jani, learned counsel for the appellant has submitted that, the First Appellate Court failed to appreciate the document on record and order is dehors to the mandatory provisions of the Civil Procedure Code.

4. Mr. Hemal Shah, learned counsel appearing for the respondent -

original defendant has submitted that, the First Appellate Court has rightly exercised its discretion which does not warrant any interference.

5. Having heard the learned counsel for the respective parties and on perusal of the impugned order, it appears that the First Appellate Court failed to appreciate the mandatory provision of Order 37 Rule 6 of the Code, which provides that, on failure to deposit the amount directed by the Court, the plaintiff shall be entitled to judgment forthwith. In the facts of the present case, within 30 days

NEUTRAL CITATION

C/SA/99/2023 ORDER DATED: 23/08/2023

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of the order, the respondent - defendant failed to deposit the amount. In the appeal proceedings, without leave of the Court, on his volition, deposited the amount and disclosed it by purshis before the Appellate Court. The First Appellate Court overlooked the statutory provision, as referred above and once the amount as directed, is not deposited in a stipulated time, then, Court has no discretion to consider the subsequent deposit of the amount. Thus, the reasons for remanding the matter to the trial Court are in contrary to the mandatory provisions of law.

6. For the aforestated reasons, the impugned order passed by the Appellate Court dated 29.09.2022 is not sustainable in law and is hereby set aside. The Regular Civil Appeal No. 73 of 2021 is restored on its original file. The Appellate Court shall decide the same on its own merits in accordance with law.

7. In view of the order passed in main Second Appeal, no order in Civil Application and is disposed of accordingly.

(ILESH J. VORA,J) P.S. JOSHI