Gujarat High Court
Jamna Ice Factory vs Paschim Gujarat Vij Company Ltd on 18 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 253 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/APPEAL FROM ORDER NO. 253 of 2024
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JAMNA ICE FACTORY & ANR.
Versus
PASCHIM GUJARAT VIJ COMPANY LTD
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1,2
SAMEE A URAIZEE(7747) for the Appellant(s) No. 1,2
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/06/2025
ORAL ORDER
1. The present Appeal from Order is filed under Order
XLIII Rule 1(d) of the Code of Civil Procedure, 1908,
(hereinafter referred to as 'CPC'), whereby the appellants-
original defendants have assailed the judgment and order dated
08.08.2014 passed by the Principal Senior Civil Judge,
Porbandar, in Miscellaneous Civil Application No. 8 of 2013.
ADMIT. Learned advocate Mr. Premal R. Joshi waives service
of notice of admission of appeal. With consent of learned
advocates appearing for respective parties, appeal is taken up
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for final hearing.
2. As far as possible, the parties will be referred to as per
their original position before the Trial Court.
3. THE SHORT FACTS OF THE CASE
3.1 The appellants herein are the original defendants No.1
& 3 (herein after referred as 'defendants'), whereas the
respondent herein is the original plaintiff, who instituted
Special Civil Suit No. 103 of 2005 seeking recovery of
Rs.21,35,460.03/ from all the defendants for payment of
electricity charges and also claiming interest at the rate of 18%
from the date of filing of the suit till realization. The
defendant No.2 happens to be one of partner and mother of
defendant No.3 though joined but died during pendency of the
suit then not joined in present appeal as not joined in
impugned application.
3.2 The summons of the suit are claimed to have been
served upon the defendants, who remained absent, whereby
the Trial Court proceeded with the suit ex-parte against them.
3.3 After considering the evidence led by the plaintiff,
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who is a statutory body registered under the Indian Electricity
Act, the suit was allowed partially in favour of the plaintiff.
3.4 The Trial Court has directed the defendants to pay
Rs.17,05,579.10/ with 6% interest from the date of filing of
the suit till realization.
3.5 The defendants, having been served with the summons
of execution filed by the plaintiff, came to know about the
passing of the ex-parte decree against them. So, they had filed
an application under Order IX Rule 13 of the CPC before the
Trial Court, being Civil Miscellaneous Application No. 8 of
2013, which was vehemently objected to by the plaintiff.
3.6 After hearing the parties, the Trial Court, vide its
order dated 08.08.2014, rejected the impugned application filed
by the defendants.
3.7 Feeling aggrieved and dissatisfied with the impugned
order, the defendants have preferred the present appeal,
wherein there was a delay of 1030 days in filing the appeal,
which was condoned by this Court vide its detailed judgment
and order dated 13.12.2017 with a cost of Rs.25,000/-, which
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was complied with by the defendants. Thus, appeal came to be
registered and today heard finally.
3.8 It further appears that during the pendency of the
delay application/appeal, the defendants have deposited a sum
of Rs.9,00,000/ with the Trial Court.
3.9 The plaintiff has filed execution proceedings seeking
recovery of an amount of Rs.25,65,260.82/ including
costs/interest, but as reported to this Court by learned Senior
Advocate Mr. Mehul Shah, appearing for the defendants, that
as on date, such execution application has been dismissed for
default.
3.10 Nonetheless, learned Advocate Mr. Premal R. Joshi,
appearing for the plaintiff, under instructions, states that the
plaintiff has already filed the necessary application for its
restoration.
4. SUBMISSIONS OF THE APPELLANTS-DEFENDANTS
4.1 Learned Senior Counsel Mr. Mehul Shah with Mr.
learned advocate Mr.Samee A. Uraizee would submit that the
order impugned in the present appeal is erroneous, bad in law,
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and contrary to the provisions of the CPC and requires to be
quashed and set aside in the interest of justice.
4.2 Learned Senior Counsel Mr. Shah would submit that
the Trial Court has erroneously observed that an independent
delay application is required to be filed when the impugned
application filed under Order IX Rule 13 of the CPC was filed
after the period of limitation. He would submit that as such,
there is no mandatory requirement under law to submit a
separate delay application to be filed in a restoration
application when the defendants have made out a ground for
the delay in filing the restoration application.
4.3 Learned Senior Counsel Mr. Shah would further submit
that the Trial Court has erroneously observed that no reason
for the delay is mentioned by the defendants in their
impugned application to condone the delay. It is submitted
that sufficient cause and reasons were made out for not filing
the restoration application in time, which were not properly
appreciated by the Trial Court, resulting into miscarriage of
justice.
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4.4 Learned Senior Counsel Mr. Shah would further submit
that as per the case of the defendants, they were not served
with the summons of the suit proceedings. In fact, original
defendant No. 2, Jemanaben, happens to be the mother of
defendant No. 3, died during the pendency of the suit and
who was a partner of the defendant No. 1 - firm along with
defendant No. 3, but no effective steps have been taken by the
plaintiff to bring her legal heirs on record.
4.5 Learned Senior Counsel Mr. Shah would further submit
that as per the initial bailiff's report, none of the defendants
were found and the defendant No. 1 - firm was found to be
closed, the summons were returned unserved, and as per the
subsequent bailiff's endorsement, it would only indicate that
summons were duly served upon the defendants on their new
address, but there is nothing on record to indicate that any
signatures were obtained by the bailiff while serving summons
of the suit upon the defendants.
4.6 Learned Senior Counsel Mr. Shah would further submit
that when summons were not served upon the defendants and
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in light of the fact that defendant No. 2 died during the
pendency of the suit, one opportunity should be given to the
defendants to defend the suit. It is submitted that to show
their bona fides, without prejudice to their rights and
contention, the defendants are ready and willing to deposit a
sum of Rs.24,00,000/- in all with the executing Court, being
the amount shown in the execution filed by the plaintiff.
4.7 Lastly, learned Senior Counsel Mr. Shah would submit
that due to sufficient cause, as noted in the impugned
application, the defendants could not appear in the suit and
defend it in accordance with law, but this Court may consider
the request of the defendants and on proper conditions, which
may be imposed, they should be allowed to defend the suit in
the interest of justice.
4.8 Making the above submissions, learned Senior Counsel
Mr. Shah would request this Court to allow the present appeal.
5. SUBMISSIONS OF THE RESPONDENT - PLAINTIFF
5.1 Learned Advocate Mr. Premal Joshi would submit that
the present appeal is nothing but an attempt on the part of the
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defendants to derail the execution and to avoid the decree
which stands against them and, in a vain attempt, have
preferred this appeal, which may not be entertained.
5.2 Learned Advocate Mr. Joshi would respectfully submit
that there is no error, much less any gross error, committed by
the Trial Court while rejecting the application, inasmuch as
there is no perversity in the order impugned in the present
appeal; thereby, no interference is required by this Court while
exercising its power under Order XLIII Rule 1 of the CPC.
5.3 Learned Advocate Mr. Joshi would further submit that
the defendants were duly served with the summons of the suit,
which was confirmed from bare reading of the bailiff's report,
which should not be ignored by this Court while appreciating
the submissions of the defendants.
5.4 Learned advocate, Mr. Joshi would further submit that
the plaintiff was forced to file a suit against the defendants in
the year, 2005 for recovery of the amount of a theft bill issued
to the defendants, which they failed to pay at the given point
in time; no leniency should be shown to the defendants.
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5.5 Lastly, learned Advocate Mr. Joshi would further
respectfully submit that if this Court is inclined to interfere
with the order impugned in the appeal and, by allowing the
impugned application of the defendants by imposing any
condition upon them to deposit the amount shown in the
execution application, the plaintiff may be allowed to withdraw
such amount unconditionally, being the decree-holder.
5.6 Making the above submissions, learned Advocate Mr.
Joshi would request this Court to dismiss the present appeal.
6. Heard learned Senior Advocate Mr. Mehul Shah with
learned Advocate Mr. Samee A. Uraizee appearing for the
appellants-defendants and learned Advocate Mr. Premal R.
Joshi appearing for the respondent-plaintiff.
7. No other and further submissions are made.
8. ANALYSIS
9. The facts, which are noted hereinabove, are not much in
dispute. It appears that at a given point in time, one advocate
had appeared on behalf of defendant No. 2 in the suit
proceedings but had not filed his Vakalatnama. Defendant No.
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2 undisputedly died before passing of the decree. The report of
the bailiff indicates that initially, he was not able to serve the
defendants at the given address in the suit as the defendant
No. 1 - firm was found closed, and defendant Nos. 2 and 3
were not residing at the address given in the suit.
10. Nonetheless, on getting a fresh address of the defendants,
he has served the summons of the suit upon them. The copy
of the bailiff's report was submitted by the appellants along
with other documents, which indicates the aforesaid facts
recorded by the bailiff in his report.
11. Nonetheless, there are no signatures of defendant Nos. 1
and 3 which were supposed to be obtained by the bailiff and
required to be submitted with his report appears to have been
obtained and as such, this proof is not made available at least
on the record of this Court. When the defendants have come
out with the specific case that defendant Nos. 1 and 3 had not
been served with the summons of the suit, it was incumbent
upon the Trial Court to at least verify its own record,
wherefrom it could have been easily confirmed as to whether
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any authorized signatory of defendant Nos. 1 and so also
defendant Nos. 3 himself, as the case may be, signed and
received fresh summons issued on their new address. Nothing
was observed so far in this regards by Trial Court while
passing impugned order. This is crucial aspect of the matter
needs serious look which completely lost sight by Trial Court
while rejecting impugned application. Unfortunately, the Trial
Court has not taken pains to verify the said fact but
erroneously, in a cavalier manner, rejected the impugned
application.
12. The Trial Court has further erroneously observed that the
defendants have not stated anything about the delay in filing
the restoration application and further erroneously observed
that a separate delay application, which is required to be filed
seeking condonation of delay, was not filed.
13. Such observation made by the Trial Court is not only
erroneous but also perverse and arbitrary, inasmuch as the
defendants have explained the delay in filing the restoration
application in the application itself, and as such, there is no
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mandatory requirement to file a separate application for delay
while filing such application by the defendants having so filed
under Order IX Rule 13 of the CPC, especially when they have
already explained the cause of delay in filing the restoration
application in the application itself.
14. This issue is no longer remains res integra, having been
already answered by the Honourable Supreme Court of India in
the case of Bhagmal and Others vs. Kunwar Lal and others,
reported in (2010) 12 SCC 159, wherein it was held thus:-
"12. It is to be seen here that the question of delay was completely
interlinked with the merits of the matter. The appellant-defendants
had clearly pleaded that they did not earlier come to the court on
account of the fact that they did not know about the order passed
by the court proceeding ex parte and also the ex parte decree
which was passed. It was further clearly pleaded that they came
to know about the decree when they were served with the
execution notice. This was nothing, but a justification made
by the appellant-defendants for making Order 9 Rule 13
application at the time when it was actually made. This was
also a valid explanation of the delay. The question of filing Order
9 Rule 13 application was, in our opinion, rightly considered by the
appellate court on merits and the appellate court was absolutely
right in coming to the conclusion that the appellant-defendants
were fully justified in filing the application under Order 9 Rule 13
CPC at the time when they actually filed it and the delay in filing
the application was also fully explained on account of the fact that
they never knew about the decree and the orders starting the ex
parte proceedings against them. If this was so, the Court had
actually considered the reasons for the delay also. Under such
circumstances, the High Court should not have taken the
hyper technical view that no separate application was filed
under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all
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the ingredients of the application for condonation of delay in
making that application. Procedure is after all handmaid of
justice................ "
(emphasis supplied)
15. Further, it would be apposite to refer and rely upon
decision of Honourable Supreme Court of India in a case of N.
Balakrishnan V/s M. Krishnamuthy reported in AIR 1998 SC
3222 wherein held thus:
"9. It is axiomatic that condonation of delay is a matter of
discretion of the Court. Section 5 of the Limitation Act does
not say that such discretion can be exercised only if the
delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation
whereas in certain other cases delay of very long range can
be condoned as the explanation thereof is satisfactory. Once
the Court accepts the explanation as sufficient it is the result of
positive exercise of discretion and normally the superior Court
should not disturb such finding, much less in revisional jurisdiction,
unless the exercise of discretion was on wholly untenable grounds
or arbitrary or perverse. But it is a different matter when the first
Court refuses to condone the delay. In such cases, the superior
court would be free to consider the cause shown for the delay
afresh and it is open to such superior Court to come to its own
finding even untrammeled by the conclusion of the lower Court.
10. The reason for such a different stance is thus : The primary
function of a court is to adjudicate the dispute between the parties
and to advance substantial justice. Time limit fixed for approaching
the Court in different situations is not because on the expiry of such
time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties.
They are meant to see that parties do not resort to dilatory tactics,
but seek their remedy promptly. The object of providing a legal
remedy is to repair the damage caused by reason of legal injury.
Law of limitation fixes a life span for such legal remedy for the
redress of the legal injury so suffered. Time is precious and the
wasted time would never revisit. During efflux of time newer causes
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would sprout up necessitating newer persons to seek legal remedy
by approaching the courts. So a life span must be fixed for each
remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. Law of limitation
is thus founded on public policy. It is enshrined in the maxim
Interest reipublicae up sit finis litium (it is for the general welfare
that a period be put to litigation). Rules of limitation are not meant
to destroy the right of the parties. They are meant to see that
parties do not resort to dilatory tactics but seek their remedy
promptly. The idea is that every legal remedy must be kept alive for
a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result
in foreclosing a suitor from putting forth his cause. There is
no presumption that delay in approaching the court is
always deliberate. This Court has held that the words "sufficient
cause" under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide Shakuntala
Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West
Bengal v. The Administrator, Howrah Muni-cipality, AIR 1972 SC
13. It must be remembered that in every case of delay there
can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut
the door against him. If the explanation does not smack of
mala fides or it is not put-forth as part of a dilatory strategy
the Court must show utmost consideration to the suitor. But
when there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time then the Court
should lean against acceptance of the explanation. While condoning
delay the Court should not forget the opposite party altogether. It
must be borne in mind that he is a loser and he too would have
incurred quite a large litigation expenses. It would be a salutary
guideline that when Courts condone the delay due to laches
on the part of the applicant the Court shall compensate the
opposite party for his loss."
(emphasis supplied)
16. Thus, in view of the aforesaid peculiar facts and
circumstances and keeping in mind ratio of aforesaid decisions
applied to the case on hand, I am of the view that a sufficient
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cause has been made out by the defendants for not appearing
in the suit and so also explained delay in filing impugned
restoration application. Having so arrived at the said
conclusion, arguments canvassed by appellants need to be
accepted whereby, the impugned order requires to be quashed
and set aside, which is hereby quashed and set aside. As a
fortiori, the impugned application, being Civil Miscellaneous
Application No. 8 of 2013, is required to be allowed on the
following conditions:
16.1 The appellants herein - original defendant Nos. 1 and
3 of Special Civil Suit No. 103 of 2005 - are hereby directed
to deposit Rs. 15,00,000/- with Trial Court within six weeks
from today. The defendants have already deposited
Rs.9,00,000/-with the Trial Court.
16.2 Thus, the defendants are, in all, directed to deposit a
total sum of Rs. 24,00,000/-. Such deposit of amount by
defendants are without prejudice to their rights and contentions
to defend suit in accordance with law and will not be treated
as admitting liability under the suit.
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16.3 The plaintiff is hereby permitted to withdraw a sum of
Rs.17,00,000/-, being the roughly principal amount as per
decree out of the total sum of Rs. 24,00,000/- which would be
deposited by defendants, without any condition stipulated on
plaintiff, except one condition that in the case where, if the
plaintiff loses in its suit, being Special Civil Suit No. 103 of
2005, then the plaintiff shall be required to refund
Rs.17,00,000/- to the defendants.
16.4 The balance amount of Rs.7,00,000/- is directed to be
invested in cumulative FDRs initially for a period of two years
in the name of the Nazir of the Trial Court, which shall be
renewed from time to time till the final disposal of the suit. A
copy of such FDR be retained in custody of Nazir of Trial
Court till further order which may be passed by Trial Court in
the suit.
16.5 It is made clear that if ultimately the plaintiff succeeds
in its suit, the amount lying in such FDRs with accrued
interest thereon shall be paid to the plaintiff, in a case of
dismissal of suit, such amount be refunded back to defendants
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with accrued interest if any in such FDR.
16.6 Once, the defendants comply with the aforesaid direction
by depositing a sum of Rs.15,00,000/- within six weeks from
today with the Trial Court, Special Civil Suit No. 103 of 2005,
filed by the plaintiff, is ordered to be restored back on its
original file as on complying with aforesaid condition by
defendants, judgement/decree dated 01-09-2012 passed by Trial
Court in Special Civil Suit No. 103/2005 is quashed and set
aside.
16.7 Thereafter, the defendants will be permitted to file their
written statement within 60 days from the restoration of the
suit on its original file. The plaintiff will be permitted to file a
rejoinder, if any. The parties to suit is permitted to file their
respective documentary evidence alongwith their pleading.
Necessary issues be additionally framed by Trial Court once
pleading will be completed and suit itself be taken up for oral
evidence of the parties to suit.
16.8 The Trial Court is hereby requested to expedite the suit,
having been instituted in the year 2005. If the parties to the
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suit extend their cooperation to the Trial Court for expeditious
adjudication of the suit, the Trial Court may hear and decide
the suit as early as possible, preferably on or before 30 th
September 2026.
17. With the aforesaid discussion, reasons, observation and
direction, the present Appeal from Order is partly allowed to
aforesaid extent. No order as to costs. As a sequel, Civil
Application for stay if any stands disposed of accordingly.
(MAULIK J.SHELAT,J)
MOHD MONIS
