Gujarat High Court
Amitbhai Nandlalbhai Pithva vs M/S Leader Electric Company on 5 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 24398 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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AMITBHAI NANDLALBHAI PITHVA
Versus
M/S LEADER ELECTRIC COMPANY
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR MEHUL M MEHTA(3416) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Mehul M.
Mehta waives service of notice of Rule for respondent. With
the consent of learned advocates appearing for the respective
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parties, matter is taken up for final hearing.
2. Heard learned Advocate Mr. Pratik Y. Jasani for the petitioner
and learned Advocate Mr. Mehul M. Mehta for the
respondent.
3. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS be pleased to issue an appropriate writ,
order or direction quashing and setting aside the impugned order
dated 10.10.2022 passed by the learned Small Causes Court, Rajkot in
Civil Misc. Application no. 9 of 2021; and be further pleased to allow
Civil Misc. Application no. 9 of 2021 as prayed for;
(B) Pending admission, hearing and final disposal of this petition,
YOUR LORDSHIPS be pleased to stay operation, execution and
implementation of the impugned order dated 10.10.2022 passed by the
learned Small Causes Court, Rajkot in Civil Misc. Application no. 9 of
2021 as well as stay further proceedings of Special Execution Petition
no. 79 of 2020 pending in the Court of learned Small Causes Court,
Rajkot;
(C) YOUR LORDSHIPS be pleased to grant such other and further
reliefs, in favour of the petitioner, as deemed fit in the interest of
justice."
4. The parties will be referred to as per their original positions
before the Trial Court.
5. The short facts of the case appears to be that:
5.1. The petitioner herein was the defendant of Summary Suit
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No.1052 of 2019, filed by the respondent herein before the
Small Causes Court, Rajkot, which was decreed ex-parte
against him. So, the petitioner had filed impugned application
being Civil Misc. Application No.9 of 2021, under Order 37,
Rule 4 of the Code of Civil Procedure. The respondent had
objected such application, mainly on the ground that despite
service of notice upon the petitioner, he chose not to appear
in the suit; thereby, such application should not be
entertained.
5.2. After hearing the parties, the Trial Court vide its impugned
order dated 10.10.2022, rejected the impugned application
filed by the petitioner.
5.3. Feeling aggrieved and dissatisfied with the aforesaid order,
the present writ application is filed by original defendant of
the aforesaid suit.
6. SUBMISSIONS OF PETITIONER-DEFENDANT:
6.1. Learned Advocate Mr. Jasani would submit that there was no
valid service of notice of suit upon the petitioner (defendant),
inasmuch as notice, which was served through Registered
Post A.D., having the postal endorsement on the cover that
"door is locked" and further endorsement that it is
"unclaimed". It is submitted that when the door of defendant
was locked, it cannot be presumed that it had either refused
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by petitioner such post, or it can be considered as a valid
service of notice upon petitioner.
6.2. Learned Advocate Mr. Jasani would submit that the Trial
Court has committed a serious error of law by assuming that
once an endorsement on the cover mentioned that it is
"unclaimed", it is valid service. It is submitted that there was
an additional postal endorsement on the cover itself, which
was unnoticed by the Trial Court, to the effect that the door
was closed.
6.3. Learned Advocate Mr. Jasani has also pointed out that after
alleged service of notice upon the petitioner, the date fixed
was 22.10.2019 and suit was adjourned on 21.11.2019. On
such date, the Presiding Officer was not available; thereby,
the suit was adjourned on 31.12.2019. It is further submitted
that by way of an application appears to have been filed by
the respondent/plaintiff on 26.11.2019, the date of the suit
was advanced. Consequently, ex-parte decree was passed on
07.12.2019 by the Trial Court against the petitioner.
6.4. Learned Advocate Mr. Jasani would submit that considering
the manner in which the ex-parte decree came to be passed
by the Trial Court that too without giving reasonable
opportunity of hearing to the petitioner/defendant, it violates
the fundamental rights of petitioner to defend the suit in
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accordance with law.
6.5. Learned Advocate Mr. Jasani would further submit that
special circumstances have been made out by the petitioner,
inasmuch as the defence of the petitioner to defend the suit
in question are stated/mentioned in para-4 and 5 of impugned
application, which was required to have been considered by
the Trial Court while adjudicating impugned application, but
having not done so, it committed a jurisdictional error.
6.6. Making the above submissions, learned Advocate Mr. Jasani
would request this Court to allow the present writ
application.
7. SUBMISSIONS OF RESPONDENT-PLAINTIFF:
7.1. Per contra, learned Advocate Mr. Mehta would submit that
there is no merit in the present writ application, which may
be dismissed by this Court, as the petitioner was duly served
with the summons of suit, in which he deliberately remained
absent. It is submitted that having not defended the summary
suit, a valid decree was passed against him.
7.2. Learned Advocate Mr. Mehta would further submit that the
Trial Court has not committed any error while rejecting
impugned application. It is submitted that just to delay the
execution of money decree, the impugned application came
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to be filed after a long period of time.
7.3. Learned Advocate Mr. Mehta would further submit that as
per postal endorsement, the summons/notice was unclaimed
by petitioner/defendant, which amounts to valid service of
notice upon him and in that view of the matter, the ground
which was set up by defendant in the impugned application
requires to be rejected.
7.4. Learned Advocate Mr. Mehta would further submit that prior
to filing of the suit, a legal notice was served upon defendant
at the same address to which the notice/summons was issued
and the defendant has received such legal notice; thereby, it
can be assumed that defendant deliberately avoided service
of notice of the suit.
7.5. Lastly, learned Advocate Mr. Mehta would submit that if this
Court would give any opportunity to the petitioner whereby,
allow him to appear in the summary suit, in that case, an
appropriate direction be issued to the Trial Court to
expeditiously adjudicate the summons for judgment and the
application for leave to defend, if any which may be filed by
the defendant, as the summary suit was instituted in the year
2019.
7.6. Making the above submissions, learned Advocate Mr. Mehta
would request this Court to reject the present application.
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8. No other and further submissions are made by any of learned
advocates.
POINT FOR DETERMINATION
9. The short question falls for my consideration as to whether
summons/notice of summary suit filed by respondent against
petitioner was validly served upon petitioner or not? whether,
in the facts and circumstances of the case, the impugned
application filed by petitioner/ defendant under Order 37,
Rule 4 of C.P.C. was correctly rejected by the Trial Court or
not?
ANALYSIS
10. The facts which are narrated hereinabove are not in dispute.
It remains undisputed that as per the postal endorsement,
the Registered Post A.D. cover returned back to the Trial
Court with the endorsement i.e. "door locked" and
"unclaimed". When such endorsements were found on the
cover, it was incumbent upon the Trial Court to issue a fresh
notice upon the defendant, as the service of notice was
remained incomplete. The postal endorsement indicates that
premises of defendant was closed when postman went to
deliver notice/summons of Trial Court i.e. door closed. So, in
such situation, postman made further endorsement i.e.
"unclaimed". It is not the case of the plaintiff that the
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defendant was made aware about institution of summary suit
in question by any other mode prior to passing of judgment
and decree.
11. Thus, in view of the aforesaid undisputed fact remained on
record, when summons/ notice of the summary suit was not
served upon the defendant, any order/judgment/decree
passed by the Trial Court would be considered as having
been passed in violation of principles of natural justice.
12. The Trial Court has arrived at the conclusion that once the
R.P.A.D. cover returned back with an endorsement of
"unclaimed", it would be deemed to have been served upon
defendant. Such a finding of fact in light of said facts is
erroneous, inasmuch as the Trial Court has failed to notice
the further endorsement on the cover itself i.e. "door locked".
Had there been only endorsement to the effect that
"unclaimed", the situation could have been different and in
that case, the defendant was required to explain under which
circumstances such cover was unclaimed. In the present
case, undisputedly, there is a postal endorsement which
states that "door locked"/"unclaimed". In this factual
situation, the presumption drawn by the Trial Court about
valid service of notice upon defendant is perverse, arbitrary
and against basic principles of natural justice.
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13. Furthermore, the petitioner has set out his defence in
paragraph 4 and 5 of impugned application, which could have
been examined by Trial Court but was undisputedly not gone
into. As per Order 37, Rule 4 of C.P.C., the Trial Court was
required to consider special circumstances while
adjudicating application filed thereunder. As per settled legal
position of law, when defendant files any such application
under Order 37, Rule 4 of C.P.C., he has to make out special
circumstances i.e. legal and valid defence to defend the
summary suit. Trial Court is required to consider it while
adjudicating such application. The Trial Court appears to
have not gone into the merits of the matter and rejected the
impugned application solely on the ground that there was a
valid service of notice upon the defendant, which is also
gross error of law and also jurisdictional error committed by
the Trial Court while passing impugned order. [ See - Rajni
Kumar V/S Suresh Kumar Malhotra reported in (2003) 5 SCC
315 ]
14. Another aspect which ought to have been considered by Trial
Court would be that as per Rojkam, summary suit, when
listed on 21 November 2019, was in fact adjourned to 31
December 2019. It appears from Rojkam of the summary suit
that there was an advancement of the hearing date of
summary suit and the same was taken up on 26.11.2019.
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Upon the request of the plaintiff stating that none remained
present for the defendant, the Trial Court appears to have
considered such request, posted the suit for orders and
thereby, the summary suit was decreed in favour of the
respondent vide order dated 07.12.2019. Even if this Court
believed the case of respondent for the time being, such
advancement of date of summary suit was not intimated to
petitioner/defendant and in that view of the matter also, the
ex-parte judgment and decree dated 07.12.2019 passed
against the defendant required to be interfered by the Trial
Court.
15. Thus, in view of the aforesaid peculiar facts and
circumstances of the case, I am of the view that defendant
was not served with service of notice/summons of suit of
summary suit instituted by respondent and in absence of
examination of his defence, impugned application could not
have been rejected.
CONCLUSION
16. In light of the foregoing reasons, it is required to be held that
summons / notice of Summary Suit No.1052 of 2019 was not
duly served upon the petitioner/defendant.
17. The Trial Court has committed gross error of law and so also
committed jurisdictional error by not correctly examined the
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impugned application filed by petitioner/ defendant under
Order 37, Rule 4 of CPC.
18. Consequently, the impugned order dated 10.10.2022 passed
by Additional Small Cause Court, Rajkot in Civil Misc.
Application No.9 of 2021 is hereby quashed and set-aside.
Accordingly, the impugned application being Civil Misc.
Application No.9 of 2021, filed by petitioner / defendant is
hereby allowed.
19. The Summary Suit No.1052 of 2019 is restored back on its
original file. The plaintiff of aforesaid summary suit may file
summons for judgment by serving an advance copy upon the
defendant, who shall also be permitted to file its leave to
defend as per procedure envisaged under Order 37 of C.P.C.
Once such applications are filed by the respective parties, the
Trial Court is hereby directed to decide such applications in
accordance with law, without being influenced by any of the
observations so made hereinabove.
20. The Trial Court is hereby directed to decide summons for
judgment and leave to defend application, which may be filed
in Summary Suit No.1052 of 2019, within six months from
the date of filing of such applications, as the suit was
instituted in the year 2019 albeit, in accordance with law.
21. Thus, in view of the aforesaid, the present writ application is
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hereby allowed. Rule is made absolute to the aforesaid
extent. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
