Gujarat High Court
Ashapura Trade And Transport Pvt. Ltd vs Bharat Sanchar Nigam Limited on 6 October, 2025
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C/SCA/13183/2025 ORDER DATED: 06/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13183 of 2025
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ASHAPURA TRADE AND TRANSPORT PVT. LTD.
Versus
BHARAT SANCHAR NIGAM LIMITED
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1
MR KASHYAP JANI, FOR MR R.C JANI, For the Respondent
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/10/2025
ORAL ORDER
1) Rule returnable forthwith. Learned counsel appearing for respondent
waive service of notice of rule on behalf of respondent.
2) Considering the facts and circumstances of the case and with consent
of learned counsel for both sides, present petition is taken up for final
hearing forthwith.
3) Heard Mr. Gaurav K. Mehta, learned counsel for petitioner and
Mr.Kashyap R. Jani for Mr. R. C. Jani, learned counsel for respondent -
Bharat Sanchat Nigam Limited.
4) By way of this petition under Article 227 of the Constitution of
India, the petitioner is seeking following relief(s):-
"B. Your Lordship may be pleased to issue an appropriate writ, order or
direction by quashing and setting aside direction No.2 passed in an order dated
08.08.2025 passed below Exh:58 by the learned Small Cause Court No.8 at
Ahmedabad in Summary Suit No.1088/2022 by which the condition was put
before the petitioner to deposit 50 % of suit value i.e. Rs.3,25,899/- within a
period of 30 days and upon the deposit of the same the stage of evidence of the
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C/SCA/13183/2025 ORDER DATED: 06/10/2025
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petitioner is to be opened. Annexed herewith and marked as Annexure-A
collectively"
5) The short controversy germane in the present petition as regards
to imposition of a condition by trial Court while allowing impugned
application filed below Exh: 58 by petitioner herein.
6) It appears that Summary Civil Suit No. 1088/2022 filed by
respondent against petitioner, wherein after closing of evidence of
plaintiff, right of petitioner being defendant was also closed as
defendant did not remain present for its oral evidence. So, impugned
application filed below Exh:58 by defendant with a request to re-open
its right to lead oral evidence.
7) After hearing the parties, trial Court partly allowed the impugned
application, but imposed condition that petitioner - defendant shall have
to deposit 50 % value of suit within 30 days. Hence, present petition.
8) Mr. Gaurav K. Mehta, learned counsel for petitioner would
respectfully submit that there was no intention on part of defendant to
delay suit proceedings, but certain facts, which are mentioned in the
impugned application, defendant could not submit its oral evidence
within stipulated time. It is submitted that, condition so imposed by trial
Court is not only cumbersome, but was uncalled for inasmuch as an
unconditional leave to defend the suit was permitted in favour of
defendant as plaintiff did not press its summon for judgment. Mr. Mehta,
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learned counsel for the petitioner would respectfully submit that rule of
procedure is a handmaid of justice and pragmatic approach requires to
be taken by trial Court while accepting the prayer of defendant. It is
further submitted that when trial Court did notice the decision of the
Hon'ble Supreme Court in the case of K.K.Velu Swami Vs. N. Plani Swami,
reported in (2011) 11 SCC 275, such an exorbitant condition could not
have been imposed upon defendant, thereby, it amounts to granting
leave to defend the suit on imposing condition. Lastly, Mr. Mehta would
respectfully submit that with suitable cost, right of defendant may be
reopened and defendant may be permitted to lay its oral / documentary
evidence.
9) Per contra, Mr. Kashyap Jani, learned counsel for respondent
would respectfully submit that after evidence of plaintiff got over way
back in the month of November, 2024, on several occasions, defendant
did not remain present to lead its evidence, which resulted into passing
of an order by trial Court, thereby, right of defendant was closed. It is
respectfully submitted that suit in question being a summary suit
requires to be tried as early as possible and there was a delay and latches
on the part of defendant, which ultimately resulted into a delay in
adjudication of the suit. Mr. Kashyap Jani would respectfully submit that
trial Court has not committed any serious error of law by directing
defendant to deposit 50 % of value of suit. It is respectfully submitted
that, this Court should not entertain present writ application while
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exercising its power under Article 227 of the Constitution of India
especially when no jurisdictional error committed by trial Court. Lastly,
learned counsel Mr. Jani would submit that even if this Court comes to
the conclusion that condition imposed by trial Court is cumbersome and
inappropriate, a suitable cost may still be imposed upon defendant.
Further, the Court may direct defendant to complete its evidence within
a stipulated time.
10) The facts which are also noticed from the record would suggest
that for few dates, the defendant could not remain present to lead its
oral / documentary evidence. So, on noticing the fact that its right to lead
oral evidence is closed, immediately defendant had filed impugned
application citing a reason of its non-appearance. At this stage, this Court
would not like to further delve into such reason inasmuch as the trial
Court has already accepted such reason, thereby, allowed defendant to
lead oral/ documentary evidence albeit with a condition to deposit 50 %
of value of suit. The petitioner is aggrieved by such condition having so
filed present writ application. It is undisputed fact remained on record
and as such not disputed by Mr. Jani appearing for the original plaintiff
that during pendency of summary suit, summon for judgment application
was not pressed by plaintiff, thereby, defendant got right to contest
summary suit unconditionally. If it is so, putting such a condition by trial
Court while allowing defendant to lead its oral/documentary evidence,
amounting to imposing conditional leave to defend the suit, which
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otherwise, could not have been done in absence of any summon for
judgment.
11) It is settled legal position of law that trial Court is well within its
discretion to pass necessary order while reopen right of parties to lead
evidence as rule of procedure is a handmaid of justice, but at the same
time, such discretion requires to be exercised judicially and not
arbitrarily. The record suggests that there was no gross negligence on
the part of the defendant having not appeared before trial Court on few
dates. If it be so, conduct of defendant would not suggest that there was
an ill-intention on part of defendant to derail the trial of summary suit.
12) Having so observed and noticed and as discussed hereinabove, I
am of the view that it would not be appropriate on the part of trial Court
to impose such a condition, which is nothing but a cumbersome on the
shoulder of defendant i.e. to deposit 50 % of value of suit. The right of
party to lead oral / documentary evidence is a very vital right and cannot
be taken away in haste and when such right requires to be reopened, trial
Court requires to strike a balance between the parties, thereby, no
injustice caused to any of the parties to the suit.
13) In light of what is discussed hereinabove and for the foregoing
reason, I am of the view that impugned order requires to be modified.
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14) In view of the aforesaid, present impugned order dated 08.08.2025
passed by learned Small Cause Court No.8, Ahmedabad, below Exh:58 in
Summary Suit No.1088/2022 is hereby modified to the extent that
petitioner - defendant of the aforesaid suit is required to deposit a sum
of Rs.15,000/- as costs within 10 days from today. Once the defendant
deposits the amount of costs as ordered by this Court, trial Court is
hereby directed to pay such amount to plaintiff. Thereafter, defendant
shall be allowed to lead oral/documentary evidence, and accordingly,
trial shall be concluded by trial Court as soon as possible.
15) In view of the foregoing conclusion, present writ application is
hereby partly allowed to the aforesaid extent. Rule is made absolute
accordingly.
(MAULIK J.SHELAT,J)
SUCHIT
