Gujarat High Court

Surat Municipal Corporation vs Narendra Mahsukhlal Mehta on 25 April, 2025

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                             C/SCA/5511/2025                                        ORDER DATED: 25/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 5511 of 2025

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                                          SURAT MUNICIPAL CORPORATION & ANR.
                                                        Versus
                                          NARENDRA MAHSUKHLAL MEHTA & ORS.
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                      Appearance:
                      MR KAUSHAL D PANDYA(2905) for the Petitioner(s) No. 1,2
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                          Date : 25/04/2025

                                                           ORAL ORDER

1. Heard learned advocate Mr. Kaushal D. Pandya for the

petitioner.

2. The present application is filed under Article 227 of the

Constitution of India seeking following reliefs :

"(A) This hon'ble court may be pleased to admit and allow this petition;

(B) This hon'ble court may be pleased to quash and set aside the impugned order dated 19.10.2024 passed below exh-110 (Annexure : A) application filed in Regular Civil Suit No.272/2018 and order dtd.

14.08.2018 (Annexure : D) passed by the 14 th additional senior Civil Judge, Surat; and allowed the

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petitioners to submit their defence and produced appropriate evidences/documents in the RCS No.272/2018 proceedings;

(C) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the implementation, execution and the operation of the impugned order dated 19.10.2024 (annexure : A) passed below exh-110 application filed in Regular Civil Suit N0.272/2018 and Order dtd. 14.08.2018 (Annexure : D);

(D) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case."

3. Short facts of the case :

3.1. The petitioners herein are the original defendant No. 1

and 2 against whom respondent No.1 herein - plaintiff has

instituted Regular Civil Suit No. 272 of 2018. The respondent

No.2 and 3 are original defendant No. 3 and 4. As far as

possible, herein after parties will be referred as per their

original position in suit.

3.2. The suit appears to have been filed for damages and

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such damages alleged to have been sustained due to an act

of defendant No.1 and 2. The plaintiff has asked for damages

without any quantification of damages in the prayer clause

as it is left to the discretion of the court.

3.3. The suit appears to have been filed in the year 2018

and all defendants were served. As the defendant Nos.1 and

2 had not appeared in the suit, it was ordered to proceed

ex-parte against them on 14.08.2018. The issues were framed

on 24.07.2019. The plaintiff and their witnesses have been

examined and closing pursis came to be filed by the plaintiff

on 19.03.2024. As the defendant Nos.1 and 2 have chosen not

to appear in the suit, it was posted for leading evidence of

defendant Nos.3 and 4.

3.4. The defendant Nos.1 and 2 after about 6 years from

getting summons of suit for the first time appeared in the

suit and filed impugned application below Exh.110 on

03.08.2024 thereby, requested trial Court to recall its order of

proceeding ex-parte against them and allow them to defend

the suit by giving reasonable opportunity.

3.5 After hearing the parties at length, trial Court vide

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its order dated 19.10.2024 has rejected impugned application

filed by defendant Nos.1 and 2.

3.6 Being aggrieved and dissatisfied with the order passed

by the trial Court on 19.10.2024 below Exh.110, defendant

Nos.1 and 2 have preferred present writ-application.

4. Submissions of the petitioners - original defendant No.1

and 2 :

4.1 Learned advocate Mr. Kaushal D. Pandya would

submit that, trial Court has not appreciated facts in its true

prospective and without giving a reasonable opportunity to

defend the suit, rejected impugned application.

4.2 Learned counsel Mr. Pandya would further submit

that, defendant Nos.1 and 2 are Corporation and its officer

respectively could not represented themselves within

reasonable time before the trial Court to defend the suit but

there was no malafide intention and or negligence on their

part not to appear and defend the suit.

4.3 Learned counsel Mr. Pandya would further submit

that, trial Court has erroneously observed that there would

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be prejudice caused to the plaintiff and / or defendant No.3

and 4 if impugned application would have been allowed. He

would submit that no serious prejudice would be caused to

the plaintiff if defendant Nos.1 and 2 would allow to defend

the suit on merits.

4.4 Learned counsel Mr. Pandya would further submit

that, it is settled legal position of law that rule of procedure

is handmaid of justice and trial Court should avoid hyper

technical approach while considering such type of application.

4.5 Learned counsel Mr. Pandya would request this

Court to consider the impugned application and with

imposition of cost which can thereby be compensated

otherside whereby, this Court may exercise its supervisory

jurisdiction in favour of the petitioner which would subserve

ends of justice.

4.6 Making the above submission, learned counsel Mr.

Pandya requested this Court to allow the present writ

application.

4.7 No other and further submissions being made by

learned counsel Mr. Pandya.






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                      Point       for determination :

5. Whether in the facts and circumstances of the case, the

trial Court has committed any gross error of law and or

jurisdictional error while rejecting impugned application filed

below Exh. 110 by defendant Nos.1 and 2 or not?

Analysis:

6. The facts which are observed herein above are not in

dispute. It is undisputed that summon of suit is already

served upon defendant Nos. 1 and 2 in the year 2018 itself.

As such there is no whisper in the impugned application

filed by the defendant Nos.1 and 2 below Exh. 110 that what

happened after receipt of the summons till filing of such

impugned application at the end of defendant Nos.1 and 2.

There is no cogent and convincing reasons coming forth in

the impugned application. It appears that defendant Nos.1

and 2 after receipt of summons of suit remained silent on

the issue and due to their sheer negligence the Court has

first passed an order to proceed suit ex-parte against them

and later on proceeded with the suit in their absence.

7. It is also required to be noted here that, plaintiff and

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his witnesses have been examined and cross examined by the

defendant Nos.3 and 4 who appears to have contested the

suit on its merits. The plaintiff was aged about 68 years;

while suit was filed in the year 2018. So, by now he would

age about 75 years.

8. So, considering the aforesaid facts and circumstances

of the case, when there is no cogent and convincing reasons

are assigned by the defendant Nos.1 and 2 who are statutory

authority, any misplaced sympathy and leniency shown to

them, it may cause serious prejudice rights to plaintiff who

is a senior citizen having already completed his part of

evidence.

9. It is true that rule of procedure is handmaid of justice

and hyper technical approach requires to be avoided by the

Court while adjudicating this type of application. At the same

time, it is also equally well settled position of law that in

absence of any cogent and convincing reasons assigned by the

parties while filing such application, court should not

mechanically grant such application.

10. At this stage, it is apposite to refer and to rely upon

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the observations so made by Hon'ble Apex Court in the case

of Honourable Apex Court in the case of Atcom Technologies

Ltd. vs Y.A. Chunawala And Co. reported in (2018) 6 SCC

639 wherein it is held as under:-

"13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the respondents to show as to in what manner they were prevented from filing the written statement.

17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned 'by balancing the rights and equities' is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil

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Procedure, 1908 are procedural in nature and, therefore, handmaid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. ........."

(emphasis supplied)

11. Thus, in view of the aforesaid pronouncement of law by

the Hon'ble Apex Court in the case of Atcome Technologies

Ltd. (supra) and considering the aforesaid undisputed facts

and circumstances of the case and having not found any

cogent and convincing reasons so assigned by petitioners in

their impugned application for not attending suit proceeding

at given point of time, I do not find any gross error of law

and or jurisdictional error committed by trial Court while

rejecting impugned application.

12. It is also required to be considered that there is a

limitation of this court while exercising its power under