Rohit Natvarbhai Prajapati vs Vapi Industries Association
2023 Latest Caselaw 6440 Guj

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      C/SCA/19041/2017                                  ORDER DATED: 04/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19041 of 2017

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                            ROHIT NATVARBHAI PRAJAPATI
                                       Versus
                      VAPI INDUSTRIES ASSOCIATION & 6 other(s)
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Appearance:
MR HEMANG M SHAH(5399) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5
MR VAIBHAV B SHUKLA(5563) for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 6,7
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     CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 04/09/2023

                                   ORAL ORDER

1. Rule returnable forthwith. Learned advocate Mr. Vaibhav Shukla

waives service of notice of rule for and on behalf of respondent Nos. 1

to 3.

2. Heard learned advocate Mr. Hemang Shah for the petitioner and

learned advocate Mr. Vaibhav Shukla for the respondent Nos.1 to 3.

3. The order passed below Exh.78 in Special Civil Suit No.159 of

2015 has been assailed by way of this petition preferred under Article

227 of the Constitution of India, seeking following relief:

"(A) Your Lordships be pleased to issue a writ of certiorai to quash and set aside the order dated 14.05.2015 passed by the learned Judicial Officer under

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the plaint (Exh.1) by which the stage of filing of reply by the present petitioner (i.e. defendant No.5 in the suit) had been closed;

(B) Your Lordships be pleased to issue a writ of certiorai to quash and set aside the order dated 13.06.2017 passed by the Additional Senior Civil Judge, Valsad at Vapi for refusing to waive the period of filing of written statement and thereby refusing to the exhibit the written statement filed by the petitioner on 01.03.2017;

(C) Pending admission and final hearing of the present matter, Your Lordships be pleased to stay the operation, implementation and execution of the order dated 14.05.2015 passed by the Additional Senior Civil Judge, Valsad at Vapi;

(D) Pending admission and final hearing of the present matter, Your Lordships be pleased to stay the operation, implementation and execution of the order dated 13.06.2017 passed by the Additional Senior Civil Judge, Valsad at Vapi;

(E) Pending admission and final hearing of the present matter, Your Lordships be pleased to stay the proceedings of Special Civil Suit No.159 of 2015 (Old no.77 of 2011) pending before the court of Additional Senior Civil Judge, Valsad at Vapi;

         (F)       xxxx






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     C/SCA/19041/2017                                    ORDER DATED: 04/09/2023

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4. What appears after hearing the learned advocates for both the

sides as well as perusing the impugned order that the court below has

closed the door for filing the defence for the present petitioner as the

written statement was intended to file after almost 6 to 7 years from

the date, when he was served.

5. Order VIII Rule I of the C.P.C. provides for filing the written

statement. The same reads as under:

Written statement:

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

6. On plain reading of provisions, it appears that the defendant has

30 days' time, from the date of service of summons, to put up his

written statement. The proviso is in applying to the commercial

disputes only. The defendant was required to adhere to the time limits

stating that in the Order VIII Rule I of the C.P.C. for filing the written

statement, the defendant could not adhere to, and therefore, the

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defendant filed the application for waiving the period of filing the

written statement at Exh.78, and thereafter, the affidavit (Exh.19.) as

he was served on 18.07.2011.

7. Learned trial court while rejecting the application Exh.78 was

pleased to hold that the right to file the written statement is already

closed and the present petitioner has not filed any application for

opening of the right for filing the written statement. The

consideration, which weighed the learned trial court to deny the filing

of written statement mainly, is the inordinate delay.

8. In catena of judgments, it is held that in civil suit, the provisions

under Order VIII Rule I of the C.P.C. has to be construed discretion.

The parties are required to be given the fullest opportunity for

hearing to adjudicate the inter se dispute. The technicality or

procedural irregularity should not over reached the consideration of

ultimate justice between the parties. Closing the door for defendant

No.5 for putting his defence will practically throwing him out of the

dispute, and therefore, he is required to be permitted to file the

written statement. To be noted that the inordinate delay caused in

filing the written statement remains unexplained. Exh.78 does not

stipulate any such convincing reason, which permits the Court to

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condone the delay for filing the written statement. However, the

interest of justice and the principle of substantial justice demands that

if by imposing the cost, the petitioner is permitted to file the written

statement, it will sub-serve the ultimate justice.

9. For the foregoing reasons and in the peculiar facts of the case,

the petition is allowed. The present petitioner, who is opponent No.5

in the suit is permitted to file the written statement on a condition

that the petitioner shall deposit the amount of cost of Rs.25,000/-

before the Nazir of the court below within a period of 10 days from

today and the plaintiff shall be at liberty to withdraw the said amount.

If written statement is already lying before the record of the court

below, on compliance of above condition it shall be exhibited

forthwith.

10. In view of the above order, interim relief stands discontinued.

Rule is made absolute to the aforesaid extent. Direct service is

permitted.

(J. C. DOSHI,J) SUYASH SRIVASTAVA