Gujarat High Court
Dineshbhai Mafatlal Chaudhary vs Legal Heirs Of Deceased Chandmal ... on 18 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5217 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DINESHBHAI MAFATLAL CHAUDHARY
Versus
LEGAL HEIRS OF DECEASED CHANDMAL DHANRAJ SHAH
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/12/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate
Mr.Ashish H. Shah waives service of notice of Rule
for respondents.
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2. With the consent of the learned advocates for the
respective parties, the petition is taken up for final
hearing today.
3. Heard learned advocates for the respective parties.
Perused the record.
4. In this petition, the prayers sought for by the
petitioner are to quash and set aside the order
passed by the learned City Civil Court, Ahmedabad
dated 18/08/2017 in Civil Miscellaneous Application
No.239 of 2016 for condonation of delay in
restoration of order dated 23/03/2010 which is at
Annexure `A' to this petition and further prayed
that the learned City Civil Court, Ahmedabad may
be directed to decide the restoration application
against the order dated 23/03/2010 on merits after
hearing the present petitioner and also prayed that
pending admission and final disposal of the present
petition this Court may be pleased to stay
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execution and implementation of the order passed
by the learned City Civil Court, Ahmedabad dated
18/08/2017 in Civil Miscellaneous Application
No.239 of 2016.
5. The submission of the learned advocate for the
petitioner is that Mr. Chandmal Dhanraj Shah -
original respondent filed a summary suit before the
learned City Civil Court, Ahmedabad being
Summary Suit No.3138 of 2001 for the recovery of
Rs.1,18,000/-. Thereafter, the said suit came to be
transferred to learned Small Cause Court,
Ahmedabad by order dated 31/12/2002 and it was
renumbered as Summary Civil Suit No.4976 of
2003. The learned trial Court passed an ex-parte
decree and the defendant i.e. the present
petitioner was directed to pay Rs.1,18,000/- with
interest at the rate of 11% per annum on
31/03/2010. Against which, the present petitioner
preferred a restoration application being Civil
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Miscellaneous Application No.142 of 2014 before
the learned Small Cause Court, Ahmedabad
whereby a prayer for restoration of the suit was
prayed for. The said application came to be
dismissed by the learned Small Cause Court on
01/02/2016. Thereafter, the present petitioner
preferred Civil Miscellaneous Application No.239 of
2016 before the learned City Civil Court,
Ahmedabad challenging the said order dated
31/03/2010 and prayed for condonation of delay of
4 years and 2 months in preferring the restoration
application. However, said application came to be
rejected by the learned City Civil Court on
18/08/2017. Against which, being aggrieved by the
same order the petitioner has preferred this
petition.
6. The submission of learned advocate for the
petitioner is that decree passed on 31/03/2010 in
Summary Civil Suit No.4976 of 2003 by the learned
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Small Cause Court, Ahmedabad is ex-facie, illegal
since the same is ex-parte order and no
opportunity was given to the defendant - petitioner
to defend the suit. He has placed reliance upon
following grounds mentioned in the present
petition, more particularly, Paragraph Nos.4(c) &
4(e) which read as under:
"4(c) The petitioner submits that the present
petitioner having the specific case that the
present petitioner was no aware with the fact
that Dhiraj. U. Panchal, Advocate work with
the Rajan. K. Modi, Advocate and advocate
Modi had also not provided the summons for
the judgment and therefore leave to defense
cannot be submitted, moreover in a year 2007
8 present petitioner met with an accident and
present petitioner had to go out of station
frequently and therefore also petitioner could
not get the information from the advocate and
therefore lack of information from the
advocate on record the ex-party order was
passed. Therefore, there is no fault or
negligence on the part of the present
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petitioner.
4(e) It is submitted that, the present petitioner
having good case on merits and ex-party
order is passed in the regular Civil suit and
also petitioner could not file the leave to
defense and on execution on decree petitioner
get the information regards to the decree and
therefore also learned court below may not
have taken such hyper technical view in the
case of present petitioner for the condonation
of delay in restoration application against the
ex-party decree."
7. After the Restoration Application No.142 of 2014
came to be dismissed by the learned Small Cause
Court on 01/02/2016, another Restoration
Application being Civil Miscellaneous Application
No.239 of 2016 came to be filed before the learned
City Civil Court for the same reliefs which were
sought for before the learned Small Cause Court,
Ahmedabad.
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8. It is further submitted by the learned advocate for
the petitioner that when the suit was originally filed
before the learned City Civil Court being Summary
Suit No.313 of 2001 came to be transferred to the
learned Small Cause Court, no notice was served
upon the petitioner and the petitioner was not
aware about the transfer of the said summary suit
and whereby it is submitted that this being a
special circumstance for not appearing in the
summary suit No.4976 of 2003.
9. It is also submitted by the learned advocate for the
petitioner that the knowledge of decree came to
the petitioner when the notice of Execution Petition
No.48 of 2013 was served to the petitioner.
10. Per contra, the learned advocate for the
respondent has forcefully submitted that the
conduct of the present petitioner is abuse of
process of law, in as much as the Civil
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Miscellaneous Application No.142 of 2014 which
was filed before the learned small cause court for
the restoration of Summary Civil Suit No.4976 of
2003 came to be dismissed on 01/02/2016. It is
also submitted that the prayers in the said
restoration application was only to open the stage
of defense and there was no prayer for setting
aside the judgment and decree dated 31/03/2010.
The learned trial Court has rightly rejected the
application by observing that any order passed
under the summary proceedings, the remedies
under Order 37 Rule 4 of the Code of Civil
Procedure, 1908 (for short, hereinafter referred to
as 'the Code'), whereby, the petitioner is required
to show special circumstance to set aside the
decree. It is submitted that in the application of
restoration of the suit, the petitioner has not shown
any special circumstance and the reasons which
are averred in the application are without any
substance and one after the another application for
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restoration is filed just to delay the execution
proceeding which is filed by the original plaintiff
being Execution Petition No.48 of 2013.
11. The learned advocate for the respondent has
placed reliance upon the following decisions:
(a) Santoshi T.V. Centre v. Arvind Mills
Limited Ahmedabad reported in 1997(0)
GLHEL-HC 210899 (Para no.3 is pressed into
service) &
(b) Estate Officer, Haryana Urban
Development Authority and Another v.
Gopi Chand Atreja (2019) 4 SCC 612 (Para
Nos.12, 13 are pressed into service)
12. After considering the submissions and on perusal of
the record, the admitted fact is that the decree was
passed by the learned Small Cause Court in
Summary Civil Suit No.4976 of 2003 was
challenged by defendant by way of Civil
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Miscellaneous Application No.142 of 2014 and the
same came to be dismissed by learned Small
Cause Court on 01/02/2016. Thereafter, once again
the defendant challenged the judgment and decree
passed in Summary Civil Suit No.4976 of 2003
before the learned City Civil Court, Ahmedabad by
filing Civil Misc. Application No.239 of 2016,
wherein also, the same reasons were assigned. The
learned Small Cause Court while dismissing the
Civil Misc. Application No.142 of 2014 has referred
and relied upon Section 38 of the Presidency Small
Cause Courts Act, 1882. The said provision is
reproduced hereunder:
"38. New trial of contested cases.--
Where a suit has been contested, the Small
Cause Court may, on the application of either
party, made within eight days from the date of
the decree or order in the suit [not being a
decree passed under section 522 of the Code
of Civil Procedure (14 of 1882)], order a new
trial to be held, or alter, set aside or reverse
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the decree or order, upon such terms as it
thinks reasonable, and may, in the meantime,
stay the proceedings.
Explanation.--
Every suit shall be deemed to be contested in
which the decree is made otherwise than by
consent of or in default of appearance by the
defendant."
13. The remedy available to the party who is aggrieved
by the judgment and decree is by way of a new
Trial application before the learned bench of Small
Causes Court, Ahmedabad. Though there is an
explicit provision under the said Act, the petitioner
did not avail that remedy and filed Restoration
Application. Under the above circumstances,
learned Small Cause Court has rightly rejected the
application for want of jurisdiction. However, just to
misuse the process of law and with a clear
intention to delay the execution proceedings, the
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petitioner filed Civil Misc. Application No.239 of
2016 before the learned City Civil Court,
Ahmedabad challenging the judgment and decree
passed in Summary Civil Suit No.4976 of 2003. It is
surprising that in the application, the petitioner has
averred that the learned Small Cause Court
directed the present petitioner to file appropriate
application before the proper jurisdiction. This
averment is nothing but an attempt to misguide
the learned trial Court as the learned Small Cause
Court while rejecting the application on 1.2.2016
has not directed the petitioner to file appropriate
proceedings before the appropriate jurisdiction but
simply rejected the application for want of proper
jurisdiction.
14. The learned City Civil & Sessions Judge while
rejecting the application on 18.8.2017 has
considered the period of delay which is gross in the
present set of facts. The period of 4 years and 2
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months in challenging the decree is not a
condonable period in absence of establishing and
showing special circumstance. In the present case,
there are no special circumstances which
prevented the defendant - petitioner to defend the
suit. Even otherwise, the judgment and decree
passed by the learned Small Cause Court,
Ahmedabad cannot be challenged before the
learned City Civil & Sessions Court, Ahmedabad.
The petitioner has misused the process of law. This
Court has taken serious note of this. The parties
cannot be allowed to file proceedings at their
whims and the Advocates, who are officers of the
Court are supposed to guide litigants to serve the
purpose of justice. It is shocking and painful to
observe that how a judgment and decree passed
by the learned Small Cause Court can be
challenged before the learned City Civil & Sessions
Court, Ahmedabad.
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15. Applying the decision of Santoshi T.V. Centre
(Supra), there is a distinction between `special
circumstance' and `sufficient cause'. The
Coordinate Bench of this Court has distinguished
the said two words in clear terms.
16. The scope under Article 227 of the Constitution of
India is very limited and this Court can only
interfere in the order impugned if the same is de
hors the provisions of law and there is patent
illegality and arbitrariness in arriving at the
conclusion.
17. In the totality of the facts, this Court is of the view
that there is no infirmity or illegality in the order
impugned since the observations made thereunder
are purely on facts. Hence, this petition cannot be
entertained and the same deserves to be dismissed
and accordingly, it is dismissed with cost of
Rs.5,000/- (Rupees five thousand only). The
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amount of cost shall be deposited by the petitioner
before the City & District Library, Ahmedabad
City Civil & Sessions Court, Bhadra,
Ahmedabad within a period of fifteen days from
the date of receipt of copy of this judgment.
18. The Registry is directed to send copy of this
Judgment to the Registrar, City Civil & Sessions
Court, Ahmedabad and the Registrar shall place
copy of this Judgment in the Execution Petition
No.48 of 2013.
19. Rule is discharged.
(D. M. DESAI,J)
VATSAL
