Gujarat High Court
Kiritsinh Chandanshah Solanki vs Anand Priyavadan Thakkar on 11 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 621 of 2019
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KIRITSINH CHANDANSHAH SOLANKI
Versus
ANAND PRIYAVADAN THAKKAR & ANR.
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Appearance:
DHARMIK R BAROT(8785) for the Petitioner(s) No. 1
SAMARTH S AMIN(8897) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 2
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/04/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Manan A.
Shah waives service of Rule on behalf of respondent No.2.
2. Heard learned advocate Mr. Jitendra Malkan, appearing with
learned advocate Mr. Samarth S. Amin for the petitioner, and
learned advocate Mr. Manan A. Shah, appearing with learned
advocate Mr. Sanjay Patel for respondent No.2. Though duly served,
there is no appearance on behalf of respondent No.1. As such
presence of respondent No.1 is not required to adjudicate present
matter.
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3. The present petition is preferred under Article 227 of the
Constitution of India, inter alia, seeking the following reliefs:
"A) Your Lordships may be pleased to admit and allow
this petition.
B) Your Lordshipsmay be pleased to quashed and set
aside the order dated 22.06.2018 passed by learned
14th Additional Senior Civil Judge, Surat below Exh. 35
in Special Civil Suit no.459 of 2013.
C) Your Lordshipsmay be pleased to quashed and set
aside theorder dated 12.07.2016 passed by the
Additional Senior Civil Judge, Surat below Exh. 30 in
Special Civil Suit no. 459 of 2013.
D) Your Lordships may be pleased to allow the
present Petitioner to carry out necessary amendment
as per the order passed by the Ld. Ld. 18th Addl. City
Civil Judge, Surat below Exh. 17 in Special Civil Suit
no. 459 of 2013.
E) Pending admission, hearing and final disposal of
this petition, this Hon'ble Court be pleased to stay the
further proceedings in Special Civil Suit no. 459 of
2013 pending before the Principal Senior Civil Judge,
Surat."
4. As far as practicable, the parties shall be referred to by their
original nomenclature as assigned in the suit proceedings.
5. The brief facts of the case are as under:-
5.1. The petitioner herein is the original plaintiff, who has
instituted Special Civil Suit No. 459 of 2013, pending before the
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Court of the learned 18th Additional Senior Civil Judge, Surat,
initially filed against respondent No.1. Subsequently, the plaintiff
preferred an application below Exhibit 17, seeking amendment of
the plaint and further prayed for impleadment of respondent No.2
herein as a party to the suit proceedings.
5.2. Since the controversy involved in the suit does not form the
subject matter of the present writ application, this Court refrains
from delving into the merits of the suit.
5.3. Upon hearing the parties, the learned Trial Court, vide order
dated 23.4.2016, allowed the application preferred by the plaintiff
below Exhibit 17. The Trial Court directed the plaintiff to carry out
the proposed amendment, including impleadment of respondent
No.2 herein as a party to the suit. A period of 14 days was granted
for carrying out the amendment and filing the amended plaint.
5.4. It appears from the record that the plaintiff did not file the
amended plaint within the stipulated period. Consequently, the
defendant preferred an application below Exh, 30 on 21.6.2016,
inter alia praying that the plaintiff be declared to have forfeited his
right to amend the plaint as per the time limit granted by the Trial
Court, and therefore, should not be permitted to file the amended
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pleadings thereafter.
5.5. The application below Exhibit 30 came to be allowed by the
learned Trial Court on 12.07.2016. The plaintiff subsequently
became aware of the said order at a belated stage and, thereafter,
preferred the impugned application below Exh. 35 on 24.04.2018,
inter alia praying for a review of the order dated 12.07.2016 passed
below Exhibit 30 and further seeking extension of time to carry out
the amendment and be permitted to file the amended plaint.
5.6. Upon hearing both sides, the learned Trial Court, vide the
impugned order dated 12.06.2018, rejected the said application with
costs. Being aggrieved and dissatisfied by the said impugned order,
the original plaintiff has preferred the present writ application.
SUBMISSION OF THE PETITIONER - PLAINTIFF:-
6. Learned Advocate Mr. Jitendra Malkan, appearing with
learned Advocate Mr. Samarth S. Amin for the petitioner, submitted
that the learned Trial Court, without properly appreciating the
factual matrix set out in the impugned application, has erroneously
rejected the same in disregard of the settled principles of law. It is
further submitted that the Trial Court adopted an unduly hyper
technical approach, failing to consider the fact that the order dated
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12.07.2016 passed below Exh. 30 came to be passed in the absence
of the plaintiff and his advocate.
6.1. Learned Advocate for the petitioner further submitted that a
bare perusal of the application filed by the defendant below Exh. 30
and the order passed thereon does not indicate that the said
application was ever served upon the plaintiff or his advocate, nor
does it reflect that the order was passed after affording an
opportunity of hearing to the plaintiff. It is further submitted that
when it was brought to the notice of the Trial Court that such an
order was passed ex parte and in breach of the principles of natural
justice, the Trial Court ought to have exercised its inherent powers
to recall the same, rather than adopting a technical approach.
6.2. Learned Advocate for the petitioner also contended that it is a
well-established proposition of law that procedural rules are
intended to serve the ends of justice, and the Trial Court ought to
have refrained from taking a hyper technical view in adjudicating an
application that is purely procedural in nature. It was further urged
that no prejudice would have been caused to the other side if the
impugned application filed by the plaintiff had been allowed.
6.3. In view of the above submissions, Learned Advocate for the
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petitioner earnestly prayed that this Hon'ble Court be pleased to
allow the present writ application in the interest of justice.
SUBMISSION OF THE RESPONDENT NO. 2 - PROPOSED
DEFENDANT NO. 2:-
7. Learned Advocate Mr. Manan A. Shah, with Learned Advocate
Mr. Sanjay Patel appearing for respondent No. 2, has vehemently
opposed the present writ application, contending, inter alia, that
there is no illegality, much less any jurisdictional error, committed
by the learned Trial Court while rejecting the impugned application.
7.1. Learned Advocate for respondent No. 2 submitted that the
plaintiff has been grossly negligent ever since the order dated
23.04.2016 was passed by the Trial Court on his application. It is
submitted that despite specific directions to file the amended plaint
within stipulated time, the plaintiff failed to comply within the
stipulated timeframe, and therefore, forfeited his right to file such an
amended pleading.
7.2. It was further submitted that in terms of Order VI Rule 18 read
with Section 148 of the Code of Civil Procedure, 1908, the plaintiff
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was obligated to file the amended plaint within 14 days or within
such extended time as may have been granted by the Trial Court.
However, such extension could not have exceeded a total of 30
days.
7.3. Learned Advocate for respondent No. 2 emphasized that the
plaintiff neither sought an extension of time nor filed the amended
plaint or carried out the requisite amendment. In such
circumstances, the defendant was constrained to move the
application below Exh. 30, which has been rightly allowed by the
learned Trial Court.
7.4. He further submitted that, as per the decision of this Hon'ble
Court in the case of Ramilaben Wd/o Mohanbhai Govindbhai Patel
v. Liliben Wd/o Gabubhai Narsinhbhai, reported in 2012 (0) AIJEL-
HC 227406, it has been categorically held that unless the plaintiff
demonstrates sufficient cause for not filing the amended plaint
within the prescribed time, the Trial Court cannot routinely extend
such period or permit the filing of the amended pleadings beyond
the statutorily permissible limit.
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7.5. In view of the aforesaid legal position, learned Advocate for
respondent No. 2 has submitted that the present writ petition does
not warrant interference in the exercise of the supervisory
jurisdiction of this Court under Article 227 of the Constitution of
India and, therefore, deserves to be dismissed in limine.
ANALYSIS :-
8. A short controversy that has arisen in the present writ
application pertains to whether the trial court's refusal to grant an
extension of time to the plaintiff for filing the amended plaint and
consequently denying the plaintiff the opportunity to carry out the
amendment was just and proper?.
8.1. The facts are largely undisputed, except for the issue of
whether the plaintiff should be granted an opportunity to submit
the amended plaint and whether sufficient cause has been shown
for failing to do so within the stipulated time. It is undisputed that
the trial court, by order dated 23.4.2016, granted the plaintiff's
application for amendment (Exh. 17), thereby permitting the
plaintiff to join respondent No. 2 in the suit proceedings. However,
the record reflects that the plaintiff failed to file the amended plaint
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and did not carry out the amendment within the stipulated time. In
response, the defendant filed an application under Exh. 30 on
21.6.2016. It remains unclear, and learned Advocate Mr. Shah is
unable to clarify, whether this application was served upon the
plaintiff or his advocate. Furthermore, the handwritten order passed
by the trial court on this application suggests, prima facie, that the
plaintiff's advocate was not present when the order was passed. In
light of these circumstances, I am of the view that the trial court's
order dated 12.7.2016 under Exh. 30, which was passed without
affording the plaintiff an opportunity to be heard, constitutes a
violation of the principles of natural justice.
8.2. At the same time, the plaintiff has presented a specific case,
asserting that the advocate initially engaged by him failed to bring
to his attention any of the orders, including the order dated
23.4.2016, by which the amendment was granted, as well as the or-
der dated 12.6.2016. Upon becoming aware of these facts, the plain-
tiff changed his counsel and promptly filed the impugned applica-
tion below Exh. 35. It is equally true that, in pursuing his suit, the
plaintiff was required to be vigilant and make efforts to stay in-
formed about the proceedings through his lawyer. However, con-
sidering the peculiar facts and circumstances of the present case,
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particularly when the application filed by the defendant under Exh.
30 was neither served upon the plaintiff nor his counsel, and when
the order was passed without hearing the plaintiff's advocate, there
is a valid reason to believe that the plaintiff's advocate may not
have communicated the Trial Court's orders to the plaintiff. It ap-
pears that plaintiff is not resident of Surat and due to such reason as
well, may not frequently in touched with his erstwhile lawyer. It is
expected that the principles of natural justice be observed while de-
ciding any request made by a party, ensuring that no serious preju-
dice is caused to any other party to suit when such a prayer made
by party is accepted.
8.3. At this stage, it is pertinent to refer to and rely upon the Full
Bench decision of the Hon'ble Supreme Court in the case of Uday
Shankar Triyar vs. Ram Kalewar Prasad Singh & Anr., reported in
(2006) 1 SCC 75, wherein it was held as follows:-
"17. Non-compliance with any procedural requirement relating
to a pleading, memorandum of appeal or application or
petition for relief should not entail automatic dismissal or
rejection, unless the relevant statute or rule so mandates .
Procedural defects and irregularities which are curable should
not be allowed to defeat substantive rights or to cause
injustice. Procedure, a hand-maiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by any
oppressive or punitive use. The well recognized exceptions to
this principle are :-
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i) where the Statute prescribing the procedure, also prescribes
specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is
pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be
deliberate or mischievous;
iv) where the rectification of defect would affect the case on
merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete
absence of authority and the appeal is presented without the
knowledge, consent and authority of the appellant;"
(emphasis supplied)
8.4 It is also profitable to rely upon recent past decision of
Hon'ble Apex Court in a case of Sugandhi (Dead) By LRS & Anr.
V/S P Rajkumar Rep By His Power Agent Imam Oli reported in
(2020) 10 SCC 706 wherein held as under,
"[9] It is often said that procedure is the handmaid of justice. Pro-
cedural and technical hurdles shall not be allowed to come in the
way of the court while doing substantial justice. If the procedural
violation does not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice rather than rely-
ing upon procedural and technical violation. We should not forget
the fact that litigation is nothing but a journey towards truth which
is the foundation of justice and the court is required to take appro-
priate steps to thrash out the underlying truth in every dispute....."
(emphasis supplied)
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8.5. It is now a well-settled legal proposition that the rule of
procedure is a handmaid of justice, and the trial Court is required to
avoid a hyper-technical approach while advancing substantive
justice to the parties.
8.6. Even in the judgment cited by learned advocate Mr. Shah, in
the case of Ramilaben (supra), this Court, after considering the
decision in Salem Advocate Bar Association v. Union of India,
reported in (2005) 6 SCC 3353, observed as follows:-
"9. The Supreme Court in the case of Salem Advocate Bar
Association, Tamil Nadu vs. Union of India reported in AIR
2005 SC 3353, of course, was deciding in respect of Section
148, as amended by Amendment Act, 1999 and the time limit
of doing the act of enlargement by the Court. There also the
Supreme Court relied on its earlier judgment in the case of
Mahant Ram Das vs. Ganga Das (supra) to hold thus:-
"45. The amendment made in Section 148 affects the
power of the Court to enlarge time that may have been
fixed or granted by the Court for the doing of any act
prescribed or allowed by the Code. The amendment
provides that the period shall not exceed 30 days in total.
Before amendment, there was no such restriction of time.
Whether the Court has no inherent power to extend the
time beyond 30 days is the question. We have no doubt
that the upper limit fixed in Section 148 cannot take away
the inherent power of the Court to pass orders as may be
necessary for the ends of justice or to prevent abuse of
process of Court. The rigid operation of the section
would lead to absurdity. Section 151 has, therefore, to be
allowed to fully operate. Extension beyond maximum of
30 days, thus, can be permitted if the act could not be
performed within 30 days for the reasons beyond the
control of the party. We are not dealing with a case
where time for doing an act has been prescribed under
the provisions of the Limitation Act which cannot be
extended either under Section 148 or Section 151. We are
dealing with a case where the time is fixed or granted by
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the Court for performance of an act prescribed or
allowed by the Court."
(emphasis supplied)
8.7. Thus, the time stipulated under Order 6 Rule 18 read with
Section 148 of the CPC is not mandatory in nature. As held in the
Salem Advocate Bar Association (supra), all provisions of the CPC,
which are essentially procedural in nature, are directory, and the
Court retains discretion to consider the request of the party,
ensuring that the rights of any party to the suit are not jeopardized
subject to well recognized limitation.
8.8. It is also well settled law that High Court should sparingly
exercise its power under Article 227 of the Constitution of India
only in appropriate cases in order to keep the subordinate courts
within the bounds of their authority [Waryam Singh v/s Amarnath -
AIR 1954 SC 215]. Having arrived at the aforesaid conclusion and
having found that trial Court has committed procedural irregularity
which requires to be corrected by this Court while exercising its
power under Article 227 of the Constitution of India thereby, an
interference requires in the impugned order.
8.9. In light of the above facts and the law laid down by the
Hon'ble Supreme Court of India in the aforementioned cases, I am
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of the view that when the trial Court had already granted relief in
favor of the plaintiff thereby granted an amendment and
accordingly ordered to join respondent No.2 herein as defendant
No.2 in the suit, a hyper-technical approach could have been
avoided by the trial Court, and it could have allowed plaintiff to
submit amended plaint by extending time so granted earlier. Such
an approach would have advanced justice to the plaintiff, especially
in granting the impugned application, where no serious prejudice
caused to the defendant including respondent No.2 herein. At the
same time, it is noted that the plaintiff, to some extent, remained
non-responsive while pursuing his suit. Such lapses on the part of
the plaintiff necessitate the payment of costs to the defendants,
particularly respondent No. 2, who had to travel to the Court due to
the plaintiff's fault.
CONCLUSION:-
9. In light of the above observations, discussions, and reasons,
the present writ application is hereby ALLOWED, and the impugned
order dated 22.6.2018 passed by the learned 14th Additional Senior
Civil Judge, Surat, is hereby quashed and set aside. Consequently,
the impugned application filed below Exh. 35 by the plaintiff is
hereby allowed, subject to the payment of costs amounting to Rs.
15,000/- to be paid by the plaintiff to respondent No. 2 herein
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within a period of three weeks from today. Additionally, the plaintiff
is directed to pay a cost of Rs. 5,000/- to the District Legal Services
Authority (DLSA), Surat, within the same period. The trial Court may
observe compliance of the cost to be paid/deposited by plaintiff.
9.1. The plaintiff is further directed to submit the amended plaint
and carry out the necessary amendments within a period of four
weeks from today, serving an advance copy to respondent No. 2,
who is now to be joined as defendant No. 2. Upon submission of
the amended plaint and the amendments being placed on record,
the trial court shall permit respondent No. 2 (proposed defendant
No. 2) to file his written statement in accordance with law. Once
the pleadings are concluded, and the parties cooperate with the trial
court, the suit is to be expedited.
10. Rule is made absolute to the aforesaid extent.
(MAULIK J.SHELAT,J)
MANISH MISHRA
