Gujarat High Court
Shri Bhutnath Ice Factory vs Paschim Gujarat Vij Company Ltd on 12 January, 2023
Bench: A.J.Desai
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4892 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 4892 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================
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 ?
==========================================================
SHRI BHUTNATH ICE FACTORY & 3 other(s)
Versus
PASCHIM GUJARAT VIJ COMPANY LTD.
==========================================================
Appearance:
MR MEHUL S SHAH, SENIOR COUNSEL WITH MR VISHAL C
MEHTA(6152) for the Appellant(s) No. 1,2,3,4
SAMEE A URAIZEE(7747) for the Appellant(s) No. 1,2,3,4
MR PREMAL R JOSHI(1327) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 12/01/2023
Page 1 of 6
Downloaded on : Tue Jan 17 20:36:26 IST 2023
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. Admit. Mr. Premal R. Joshi, learned advocate waives
service of notice of admission on behalf of respondent.
2. With consent of learned advocates appearing for the
respective parties, the appeal is taken up for final hearing and
particularly on certain statement made made by the appellant
with regard to deposit of certain amount before the trial Court.
3. The present appeal has arisen from the judgment and
order dated 30.11.2017 passed by the learned Principal Senior
Civil Judge, Porbandar in Special Civil Suit No.18 of 2008,
which has been partly allowed in favour of respondent -
original plaintiff.
4. Short facts arising from the record are that the present
respondent filed aforesaid Special Civil Suit 18 of 2008 in the
Court of Principal Senior Civil Judge, Porbandar and prayed
for a decree of Rs.21,39,223.11 ps. with interest towards
electricity charges.
4.1 In response to notice issued by this Court the present
appellants appeared before the trial Court and filed their
written statement. Thereafter, issues were framed at Exh.15 by
the trial Court. The original plaintiff examined two witnesses.
However, they were not cross examined by the present
appellants - defendants. The defendants did not examine any
witness and ultimately the trial Court after considering the
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
documents available on record allowed the suit in part and
passed a decree to the tune of Rs.14,75,274.50 ps. With
running interest at the rate of 6% from the date of filing of
the suit. Hence, this appeal.
4.2 Appeal came to be listed before this Court on 18.01.2019
before the Co - Ordinate bench and notice has been issued in
the matter.
5. Mr. Mehul S. Shah, learned Senior Counsel would submit
that in connection with the dispute with regard to the alleged
consumption of electricity, the present appellant has paid an
amount of Rs.1,32,950/- to the respondent electricity company
and during the pendency of this appeal, to show the bona
fide, an amount of Rs.6,00,000/- was paid to the electricity
company.
5.1 Mr. Shah, learned senior counsel would submit that it is
an undisputed fact that the original plaintiff who examined
two witnesses, were not cross - examined by the lawyer
engaged by the appellants. The appellants were not aware
about the proceedings of the Court and they were never called
before the Court for their deposition. In this circumstance, he
would submit that a chance may be given to the appellants to
defend their case before the trial Court. He further states that
appellants are ready and willing to deposit an amount of
Rs.7.5 lacs before the trial Court in the suit proceedings if the
suit is revived and the appellants are permitted to proceed
with the case in accordance with law.
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
5.2 He, therefore would submit that the impugned order may
be quashed and set aside and the matter may be remanded
back to the trial Court.
6. Mr. Joshi, learned advocate appearing for the respondent
electricity company has opposed this appeal and submitted that
decree of Rs.14 lacs with interest has been passed. This decree
has been passed by the trial Court considering the evidence
lead by the original plaintiff and therefore he prayed that
appeal may be dismissed. However, alternatively he would
submit that if an amount of Rs.7.5 lacs paid to the respondent
- electricity company, they can participate in the suit
proceedings, if the same is revived.
7. We have heard learned advocates appearing for the
respective parties and perused the impugned judgment. It is an
undisputed fact that two witnesses examined by the original
plaintiff - electricity company, were not cross examined at the
instance of lawyer who was engaged by the present appellants.
It is also not in dispute that none of the appellants have ever
entered into the witness box in support of their written
statement, which was filed before the trial Court.
7.1 Considering the above aspect we are of the opinion that
a chance may be given to the original defendants to plead
their case so that rights of the parties can be finally
adjudicated after scrutinizing the evidence which may be lead
by the parties.
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
7.2 We are of the opinion that when appellants are ready
and willing to deposit an amount of Rs.7.5 lacs before the trial
Court, a chance is required to be given to deal with the suit
filed by the respondent.
8. As far as submission made by learned advocate Mr. Joshi
is concerned about paying the amount to the respondent -
company, we are of the opinion that respondent electricity
company has already received an amount of Rs.7,32,950/-.
Hence, we are unable to accept the request made by Mr. Joshi
and pass following order;
8.1 The impugned judgment and order dated 30.11.2017
passed by the learned Principal Senior Civil Judge, Porbandar
in Special Civil Suit No.18 of 2008 is hereby quashed and set
aside, only on the ground of having found that the suit has
been decreed in absence of sufficient evidence and in absence
of proper opportunity being granted to the original defendant
and that too, not at their fault.
8.2 The appellant shall deposit an amount of Rs.7.5 lacs with
the Nazir, Principal Sr. Civil Judge, Porbandar within a period
of 4 weeks from today. The amount shall be invested in FDR
with Nationalized Bank, initially for a period of 6 months and
shall be renewed from time to time till disposal of the suit.
8.3 It is made clear that this Court has not entered into the
merits of the case.
C/FA/4892/2018 JUDGMENT DATED: 12/01/2023
8.4 The trial Court shall proceed with the suit. The trial
Court shall recall two witnesses, who were examined by the
plaintiff for the cross examination, at the instance of present
appellants - original defendants. The appellants are also
permitted to produce documentary evidence and examine their
witnesses. The trial Court shall decide the suit as early as
possible, preferably within a period of 6 months from the date
of amount deposited by the appellant. Parties shall co -
operate with the trial Court to complete the proceeding of the
suit which is pending since the year 2008.
8.5 With these observations and directions, appeal stands
disposed of.
9. In view of the disposal of the main appeal, Civil
Application does not survive and disposed of accordingly.
(A.J.DESAI, J)
(RAJENDRA M. SAREEN,J)
DRASHTI K. SHUKLA
