Gujarat High Court
Patel Atulkumar Natvarlal vs Thakor Dashrathji Kanaji on 7 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5162 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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PATEL ATULKUMAR NATVARLAL
Versus
THAKOR DASHRATHJI KANAJI & ANR.
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Appearance:
MR BC DAVE(245) for the Petitioner(s) No. 1
MR NILESH KISHANLAL JOSHI(13883) for the Respondent(s) No. 2
MR. YOGENDRA THAKORE(3975) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.
Yogendra Thakore and learned advocate Mr. Nilesh Kishanlal
Joshi waive service of notice of rule on behalf of their
respective respondents.
2. With the consent of the parties, the matter is taken up
for final hearing.
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3. Heard learned advocate Mr. B.C. Dave for the
petitioner, learned advocate Mr. Yogendra Thakore for
respondent No.1 and learned advocate Mr. Nilesh Joshi for
respondent No.2.
4. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"(A) Your Lordships may be pleased to issue an appropriate writ,
order or direction quashing and setting aside the orders dated
06.12.2024 passed by the Ld. 10th Additional Civil Judge, Mehsana
beloiw Ex. 27 in Regular Civil Suit No. 152/2023 (Annexure-D) and the
order dated 30.01.2025 below Ex. 32 passed by the Ld. 10th
Additional Civil Judge, Mehsana in Regular Civil Suit No. 152/2023
(Annexure-E) and be pleased to direct the Ld. Trial Court to accept the
written statement of the petitioner - defendant no. 1 in Regular Civil
Suit No. 152/2023.
(B) Pending hearing and final disposal of this petition, Your
Lordships may be pleased to stay the further proceedings of Regular
Civil Suit No. 152/2023 pending in the Court of Ld. 10th Additional Civil
Judge, Mehsana.
(C) Any other relief deemed just and proper may please be granted
in the interest of justice."
Facts of the case
5. The petitioner herein happens to be original defendant
No.1 of Regular Civil Suit No. 152 of 2023 instituted by the
respondent No.1 herein pending before the Civil Judge,
Senior Division, Mehsana. The respondent No.2 herein is
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original defendant No.2, who alleged to have been
occupying suit land, thereby joined in the suit.
5.1 The suit is filed seeking specific performance of an
agreement to sell executed between plaintiff and defendant
No.1. After service of summon upon defendants, defendant
No.1 initially sought time in the matter but not filed any
written statement.
5.2 The defendant No.1 chooses to file an application
under Order 7 rule 11 of CPC, which came to be rejected by
the trial Court vide its order dated 25.11.2024.
5.3 As there was no written statement was filed within
stipulated time, the plaintiff appears to have filed an
application below Exh. 27 whereby, requested the trial Court
to close right of defendant No.1 to file written statement.
5.4 After hearing the parties, the trial Court vide its order
dated 06.12.2024 accepted such application, whereby, right
to file written statement of defendant No.1 was closed.
5.5 Having confronted with the aforesaid order passed by
the trial Court, defendant No.1 has preferred the impugned
application filed below Exh. 32, whereby requested the trial
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Court to reopen his right to file written statement.
5.6 After hearing the parties, the trial Court has rejected
the impugned application vide its impugned order dated
30.01.2024.
5.7 Being aggrieved and dissatisfied with the aforesaid
order, the present writ application is filed by defendant
No.1.
Submission of the petitioner- defendant No.1
6. Learned advocate Mr. B.C. Dave for the petitioner
would submit that the trial Court has taken very hyper
technical approach while adjudicating the impugned
application, whereby, not re-open the right of defendant
No.1 to file written statement. He would further submit that
rule of procedure is hand-maid of justice and in a case where
there is no gross negligence on the part of defendant No.1
not to file written statement within statutory period of time,
the trial Court requires to allow the impugned application.
6.1 Learned advocate Mr. Dave would further submit that
as per settled legal position of law and the catena of
decision of the Hon'ble Apex Court, it is well settled legal
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position of law that provisions of Order 8 rule 1 of CPC , is
not mandatory but directory in nature. It is submitted that
there is no prejudice would cause to the other side if the
defendant No.1 would allow to file written statement.
6.2 Lastly, learned advocate Mr. Dave would submit that as
per the order passed by this Court, defendant No.1 has
already deposited the amount of cost of Rs. 25,000/- as a
probable cost of the plaintiffs to defend the present
proceedings. It is submitted that coming late to file written
statement, an additional amount of Rs. 10,000/- is also
deposited with GLSA, Ahmedabad.
6.3 Making the above submission, learned advocate Mr.
Dave would request this Court to allow the present writ
application.
Submission of respondent No.1- original plaintiff
7. Learned advocate Mr. Yogendra Thakore would submit
that there is no error much less any gross error of law
committed by the trial Court while rejecting the impugned
application. It is submitted that this Court should not
interfere with the well-reasoned order passed by the trial
Court while exercising its power under Article 227 of the
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Constitution.
7.1 Learned advocate Mr. Thakore would further submit
that when defendant No.1 appeared in the suit, initially, he
sought time to file written statement, instead of filing
written statement, defendant No.1 chooses to file an
application under Order 7 rule 11 of CPC. It is submitted that
having consciously not filed written statement within
stipulated time, the trial Court was correctly in its approach
to close the right of defendant No.1 to file written
statement.
7.2 Learned advocate Mr. Thakore would further submit
that as per provisions of Order 8 rule 1 of CPC, within
stipulated time, the defendant No.1 requires to file written
statement. It is submitted that defendant No.1 has
consciously having not filed written statement, later on
cannot request the trial Court to reopen his right to file
written statement.
7.3 It is respectfully submit that this Court should not
interfere with the impugned order and no leniency to be
shown in favour of the petitioner - defendant No.1 as
conduct does not seems reasonable.
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7.4 Making the above submission, learned advocate Mr.
Thakore would request this Court to reject the present writ
application.
Submission of respondent No.2- defendant No.2
8. Learned advocate Mr. Joshi would submit that
defendant No.2 has already filed his written statement
within stipulated time. It is submitted that as such the order
impugned in the present writ application is neither
erroneous nor perverse, thereby, this Court should not
interfere with such order. Nonetheless, he would request
this Court to pass appropriate order in the matter.
Point for determination
Whether in the facts and circumstances of the present
case, is there any gross error of law and so also jurisdictional
error committed by the trial Court while rejecting the
impugned application filed by the defendant No.1 whereby
sought to reopen his right to file his written statement?
Analysis
9. The facts which are narrated hereinabove are not in
dispute. It is true that on getting summons of suit, defendant
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No.1 though appeared and sought time to file reply but he
chooses to first file an application under Order 7 rule 11 of
CPC. It appears that defendant No.1 was appeared in the
suit on 25.01.2024 and an application under Order 7 rule 11
of CPC came to be filed on 02.03.2024 which was decided
against the defendant No.1 vide order dated 25.10.2024.
Thereafter vide order dated 06.12.2024, the trial Court has
closed the right of defendant No.1 to file written statement.
10. The impugned application appears to have been filed
on 30.01.2025 which is within reasonable period of time,
after closing the right of defendant No.1 to file written
statement.
11. If the sequence of events which are narrated herein
above is considered, prima-facie, it does not seem to this
Court that defendant No.1 was remain negligent in filing
written statement. It is true that he could have filed written
statement within stipulated period irrespective of the fact
that first he chooses to file an application under Order 7 rule
11 of CPC. But the fact remained that he was pursuing his
legal remedy available under law, thereby, filed an
application under Order 7 rule 11 of CPC. There is nothing
made available on record to view contrary to what is
observed hereinabove.
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12. The trial Court seems to have lost sight of one vital fact
that whenever, defendant file his written statement beyond
stipulated period of time, the cause which prevented
defendant to file written statement requires to be
considered by the trial Court. While adjudicating the
application filed by the defendant to reopen his right to file
written statement, he has to make out the case.
13. It is also settled legal position of law that if a cause set
out in the application, is reasonable and bona-fide, ordinarily,
the discretionary power available with the trial Court should
be exercised in favour of the applicant. Of course, it is not
straight jacket formula that in each and every case where
defendant failed to file written statement, the trial Court
should exercise its discretion in favour of such defaulting
defendant. Nonetheless, the endeavour of the Court always
tilt towards a party who by reason which constitute
sufficient cause, could not have filed written statement
within statutory period of time as provided under Order 8
rule 1 of CPC.
14. In a given case, if there is any gross negligence, dilatory
tactics and or any false averment made in the application
while seeking such prayer, in regards to reopen the right to
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file written statement, the trial Court well within its right to
reject such application.
15. At this stage, it is apt to refer and rely upon the
relevant observation of the Hon'ble Apex Court in the 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.
Procedural 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 relying
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 appropriate steps
to thrash out the underlying truth in every dispute....."
16. It is by now a well-settled position of law that the rule
of procedure is the handmaid of justice. Ordinarily, the trial
Court should not permanently close the right of a party in a
manner that causes undue hardship or inconvenience, more
particularly in peculiar circumstances, where despite having a
strong case on merits, the party is unable to effectively
defend the litigation.
17. At the same time, when the defendant either come late
to the Court with a request to reopen his right to file written
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statement and or there is some lapses found on the part of
the defendant not to file written statement within
stipulated time, such right to file a written statement can be
reopened by the trial Court by imposing costs, or in a given
case, even exemplary costs, so as to compensate the other
side, i.e. the plaintiff.
18. It is reported to this Court that defendant No.2 has
filed his written statement in the matter and the trial yet not
commenced. In this set of facts of the case on hand, and so
also undisputed facts which are recorded hereinabove, this
Court is of the opinion that trial Court has not exercised its
jurisdiction so vested in it while adjudicating the impugned
application, to that extent, the trial Court has committed
jurisdictional error.
19. It is equally true that this Court should not ordinarily
interfere with the order passed by the trial Court while
exercising its power under Article 227 of the Constitution of
India. Nonetheless, in a given case where it appears on the
face of the record that the trial Court has not properly
exercised its jurisdiction so vested in it, which cause great
hardship and injustice to the party, this Court shall have to
exercise its discretion so vested in it. This Court required to
exercise such power to put the trial Court within its bound.
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[See- Waryam Singh v/s Amarnath - AIR 1954 SC 215]
20. This Court has already imposed exploratory cost of Rs.
25,000/- upon petitioner - defendant No.1 while issuing
notice and so also directed to deposit amount of Rs. 10,000/-
which is already deposited with GLSA. This Court would like
to observe that this amount would be reasonable and
sufficient to compensate plaintiff.
Conclusion
21. In light of the aforesaid facts and circumstances of the
case, having found that the trial Court has not properly
exercised its jurisdiction so vested in it while adjudicating the
impugned application, the impugned order dated 30.01.2025
passed by the 10th Additional Civil Judge, Mehsana below
Exh. 32 in Regular Civil Suit No. 152 of 2023 is hereby
quashed and set aside. Consequently, the impugned
application filed below Exh. 32 in the aforesaid suit is hereby
allowed.
22. Accordingly, right of defendant No.1 to file his written
statement is hereby reopened. The defendant No.1 is
permitted to file his written statement on or before 8 th
September, 2025 with documentary evidence if any by
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serving an advance copy to the plaintiff and defendant No.2.
It is also open for the plaintiff and defendant No.2 to file
rejoinder if any.
23. This Court has already permitted the plaintiff to
withdraw the amount of Rs. 25,000/- as a probable cost
which is already deposited with the Registry of this Court. If
so for the aforesaid amount is not withdrawn by the plaintiff,
it is open for the respondent No.1- plaintiff to withdraw the
amount of Rs. 25,000/-. Registry to do the needful in the
matter.
24. In view of the aforesaid conclusion, the present writ
application is hereby allowed. Rule is made absolute.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
