M/S. Shreejee Flexo vs M/S. Parasmani Polymers Llp
2025 Latest Caselaw 5140 Guj

Gujarat High Court

M/S. Shreejee Flexo vs M/S. Parasmani Polymers Llp on 25 June, 2025

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                             C/SCA/8240/2025                                      ORDER DATED: 25/06/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/SPECIAL CIVIL APPLICATION NO. 8240 of 2025
                       =============================================
                                                M/S. SHREEJEE FLEXO & ANR.
                                                           Versus
                                               M/S. PARASMANI POLYMERS LLP
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                       Appearance:
                       MR.SHIKHAR TANDON WITH MR.HARSHESH R KAKKAD(7813)
                       AND MS.KRITIKA SINGH for the Petitioner(s) No. 1,2
                       =============================================

                        CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
                              SUNITA AGARWAL
                              and
                              HONOURABLE MR.JUSTICE D.N.RAY

                                                          Date : 25/06/2025

                                                  ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1) This is a wholly misconceived petition seeking invocation of the extraordinary supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 23.01.2025 passed by the Commercial Court, City Civil and Sessions Court, Ahmedabad, in rejecting the restoration application filed under Order IX Rule 13 CPC, terming it as an ex-parte decree.

2) We may record that the defendant / recall applicant / petitioner herein has filed the application under Order IX Rule 13 CPC with the delay of 319 days. The order impugned records that the documentary evidence on record produced vide list at Exhibit - '17' show that the applicant / petitioner

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herein was duly summoned vide summons dated 14.09.2021 which on 07.10.2021 was received by the Manager viz. Ravi Saini of M/s Shreejee Flexo namely the petitioner No.1. herein. The contention made by the learned advocate for the applicant that the applicant was not served with the summons was, thus, found inadmissible.

3) On the question of delay and the service of summons upon the applicant / petitioner herein, when we have gone through the application under Order IX Rule 13 CPC, the statement of fact in paragraph Nos. '2.5' and '2.6' at page No. '37' read as under:-

"2.5. The summons of the suit under order XXXVII were send to the applicants, being duly served upon them on 07.10.2021 as per the report submitted by the Process Server of the Commercial Court, Lucknow, but neither the applicants nor their Learned Counsel appeared before the court to contest the said suit.

2.6. As the applicants nor there counsel remained present before the honorable court, therefore on the basis of the documentary evidence ex-parte order allowing the suit of the plaintiff was passed by the honorable court vide order dated

14.09.2022."

4) On a query made by the Court, the learned counsel for the petitioner herein would invite attention of the Court to paragraph No. '3.8' contained in the grounds of the said application at page No. '39' of the Paper-book, to submit that the applicant had categorically stated that they had not received the notice as well as summons sent by the Court and therefore, were not able to remain present before the Court and in this circumstance, the Court may restore the suit as

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per Order IX Rule 13 CPC. The statement in paragraph No. '3.8', which is one of the grounds taken in the restoration application at page No. '39' is also relevant to be noted herein:-

"3.8. The applicants state that they have not received the notice as well as summons sent by the court and therefore were not able remain present before the honourable court. Considering the aforesaid circumstances, the applicants begs before this honourable to restore the said suit as per Order 9 Rule 13 of Civil Procedure Code."

5) From a further perusal of the application seeking condonation of delay in filing the application under Order IX Rule 13 CPC at page No. '46' of the Paper-book, we may note the statements made in paragraph Nos. '2' and '3' therein as under:-

"2. As the applicants nor there counsel remained present before the honorable court, therefore on the basis of the documentary evidence ex-parte order allowing the suit of the plaintiff was passed by the honorable court vide order dated 14.09.2022.

3. It is stated that plaintiff (respondent herein), have obtained the ordr dated 14.09.2022 by misleading facts the court by giving false facts and evidence therefore the applicants has preferred Civil Application no. 1 of 2023 (Restoration) in COMMERCIAL CIVIL SUIT NO. 666 of 2021. It is stated that as the applicant has not received the summons of the honorable court and therefore has failed to remain present before the honorable court. It is stated that as he has received the Certified Copy of order after long time and due to lack of legal knowledge therefore there was a delay of ___days in filing the said application, therefore the applicant request to condone the said delay."

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6) It is pertinent to note that apart from the above statements, there is no other statement made in the application seeking condonation of delay, even to explain as to when and how the petitioner came to know about the ex-parte decree dated 14.09.2022. There is absolutely no averment of explanation of delay, much less day to day delay of 319 days, which was required to be explained by the petitioner while seeking for recall of the ex-parte decree by filing application under Order IX Rule 13 CPC.

7) Placing reliance upon the judgment of the Apex Court in the case of Dwarika Prasad (D) through Lrs. Vs. Prithvi Raj Singh [order dated 20.12.2024 in Civil Appeal No.14380 of 2024 arising from SLP (C) No.11259 of 2022], it was argued that the Court should not take a hyper- technical view in the matter of condonation of delay in filing application under Order IX Rule 13 CPC. The reference to paragraph No. '11' of the abovenoted decision is wholly misplaced, inasmuch as, the judgment referred thereto in Bhagmal and Ors Vs. Kunwar Lal and Ors. in paragraph No. '11' was pertaining to a matter where the delay was fully explained and the application under Order IX Rule 13 was rejected only on the ground of delay that no separate application under Section 5 of the Limitation Act was filed therein. It was noted therein that the application under Order IX Rule 13 itself had all ingredients of the application for condonation of delay in making that application.

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8) We have also noted that the aforesaid decision of Dwarika Prasad (Supra) was passed in the shocking facts of the said case which has been noted by the Hon'ble Apex Court in Paragraph No.3.3 of the aforesaid decision, which reads as under :-

"3.3. The Appellant-defendant filed restoration application under Order IX Rule 13 and Section 151 of CPC on 31.10.1994. He stated that he was uneducated, naïve and old aged person unable to understand Court proceedings, he had put full faith in his previous counsel Shri Ramgopal Singh. However, on 26.10.1994 the Respondent and his brothers publicly said to the Appellant that they have got the sale deed cancelled and have also got the name of the Appellant removed. As suspicion arose in the Appellant's mind, he appointed Shri Ashok Kumar Verma as his counsel who inspected the file in the Revenue Court, Kasganj. The Appellant was informed about the ex-parte decree, on 27.10.1994. The Counsel for the Appellant found copy of the ex-parte decree the next day on 28.10.1994. Accordingly, on 31.10.1994 the Appellant filed the restoration application. The Appellant stated in the application that his previous counsel Shri Ramgopal Singh played fraud over him as he conspired with Respondent."

9) Therefore, the aforesaid decision in Dwarika Prasad (Supra), under no circumstances can be said to be applicable to the facts of the present case.

10) The further submission is that the explanation given by the petitioner herein seeking for condonation of delay in filing the application with the assertion that the plaintiff had misled the Court in getting an ex-parte decree, was sufficient explanation and no further explanation was required. This submission is found to be misconceived and is liable to be rejected for the facts of the present case noted hereinabove, wherein the petitioner himself has stated that he was served with the summons on 07.10.2021.

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11) We, therefore, cannot attach any error in the findings returned by the trial Court in rejection of the application seeking condonation of delay in filing the application under Order IX Rule 13 CPC recording that the documents on record would establish that the summons were duly served upon the manager of the petitioner No.1 on 07.10.2021.

12) For the aforesaid, we do not find any good ground to invoke our extraordinary supervisory jurisdiction under Article 227 of the Constitution of India to attach any illegality, much less manifest illegality to the order impugned. The present petition is dismissed as misconceived. No order as to costs.

(SUNITA AGARWAL, CJ )

(D.N.RAY,J) SAHIL S. RANGER