Gujarat High Court
Prop. Of A.S.Marine, Aliraza Habibbhai ... vs M/S. Saif India on 1 September, 2025
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C/SCA/16878/2024 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16878 of 2024
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PROP. OF A.S.MARINE, ALIRAZA HABIBBHAI SARANI
Versus
M/S. SAIF INDIA & ORS.
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Appearance:
MR ALINAVAZ A VAKIL(10191) for the Petitioner(s) No. 1
MR JIGAR B OZA(11654) for the Petitioner(s) No. 1
MR. MAHITOSH U SINGH(7015) for the Respondent(s) No. 1,2,3
SHRIJIT G PILLAI(7937) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mr. Shrijit
G. Pillai waives service of notice of Rule for respondents.
2. With the consent of the learned Advocates appearing for
the respective parties, the matter is taken up for
hearing.
3. Heard learned Advocate Mr.Alinavaz A. Vakil for the
petitioner and learned Advocate Mr. Shrijit G. Pillai for
the respondents.
4. The present writ application is filed under Article 227 of
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the Constitution of India, seeking the following reliefs:
"a) Your Lordships may be pleased to admit this Special Civil
Application.
b) Your Lordships may be pleased to issue appropriate writ,
order or directions to quash and set aside the order dated
06/04/2024 passed by learned 3rd Additional Senior Civil Judge,
Bhavnagar in Summary Suit No. 33/2023 (Annexure D-E) and
thereby allow the application to pass a decree in summary suit
herein.
c) Pending admission hearing and final disposal of this petition
your Lordships may be pleased to vacate, implementation and
operation of the order dated 06/04/2024 in Summary Suit No.
33/2023 passed by the Ld. 3rd Additional Senior Civil Judge,
Bhavnagar.
d) Your lordships may be pleased to pass any other appropriate
and just order/s in the interest of justice."
5. Before proceed with the order, this Court would like to
reproduce its order dated 28/08/2025 passed in the
matter, which reads as under:
"1. At the outset, it is required to be noted that there is leave note
of learned Advocate Mr. Shrijit G. Pillai appearing for the
respondents but there is a joint Vakalatnama of learned Advocate
Mr. Mahitosh U. Singh also appearing for the respondents.
2. Be that as it may, this Court would not like to pass any adverse
order in absence of learned Advocates appearing for the
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respondents.
3. Nonetheless, learned Advocate Mr. Alinavaz A. Vakil for the
petitioner pointed out the difficulty of the petitioner that despite
there is an order passed by the Trial Court, thereby respondents
being defendants of Summary Suit filed by the petitioner directed
to deposit 50% amount as claimed in the suit vide its order dated
09.10.2023, but till date, the respondents have not deposited 50%
amount but some negligible amount is deposited.
3.1 Learned Advocate Mr. Vakil would further submit that the
impugned application was filed by the petitioner herein below
Exh. 17 before the Trial Court whereby, it has been requested to
the Trial Court that as respondents/ defendants failed to deposit
the amount as ordered by the Trial Court below Exh. 10 vide its
order dated 09.10.2023, as per Order 37 rule 6(b) of CPC, a
decree may be passed in favour of the petitioner- plaintiff. Such
application was not decided by the Trial Court only on the
ground that said order passed by the Trial Court below Exh. 10,
is challenged by the respondents-herein before this Court by way
of Civil Revision Application No. 502 of 2023.
3.2 Learned Advocate Mr. Vakil would further submit that this
Court has not granted any stay against the said order below Exh.
10 passed by the Trial Court till date but such revision
application is still pending. So, learned Advocate Mr.Vakil would
submit that the order impugned passed by the Trial Court
requires to be interfered by this Court and thereby, the Trial
Court be directed to decide the impugned application filed below
Exh. 17 in Summary Suit No. 33 of 2023 pending before the
Senior Civil Judge, Bhavnagar on its merit as early as possible.
4. As having heard learned Advocate for the petitioner at length
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but considering the aforesaid fact which has been stated in the
operative part of this order, this Court would like to hear learned
Advocates for the respondents and to get their response.
5. Stand over to 1st September, 2025. Registry to list this matter
on top of the board. It is made clear that on such date, no sick
note or leave note filed by the learned Advocates for the
respondents will be entertained by this Court."
6. Today, when the matter was taken up for hearing,
learned Advocate Mr. Pillai has submitted affidavit-in-
reply opposing the prayer made in the petition, which is
taken on record. According to learned Advocate Mr.
Pillai, the present writ application is nothing but an
abuse of the process of law and an arm-twisting method
adopted by the petitioner, who happens to be the
plaintiff of the summary suit in question, inasmuch as
against the grant of conditional leave to defend,
respondents herein have preferred Civil Revision
Application No. 502 of 2023, which is pending at large
before this Court for its adjudication.
6.1. Learned Advocate Mr. Pillai would further submit that
there are serious questions of facts and law involved in
the matter, thereby the Trial Court could not have
granted conditional leave to defend, which could be
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examined by this Court in the revision application.
6.2. Lastly, learned Advocate Mr. Pillai would submit that
during the pendency of the matter, few amounts have
been paid to the plaintiff, which could be confirmed from
the Ledger annexed with the reply submitted by the
respondents. So, according to learned Advocate Mr.
Pillai, there is no substance in the writ application,
which requires to be rejected.
7. Per contra, learned Advocate Mr. Vakil would emphasize
what was argued by him on 28th August 2025 and would
further submit that respondents could have filed the
reply at the earliest, thereby, the petitioner could have
responded to it, but in any case, there is no substance in
the reply and this Court may accept the prayer made in
the application.
8. The short facts appear to be that the petitioner happens
to be the plaintiff of Summary Suit No. 33 of 2023 filed
against the respondents, wherein, the Trial Court partly
allowed leave to defend application filed by the
respondents, granting conditional leave to defend,
thereby directed the respondents to deposit 50% of the
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amount within the stipulated time. Undisputedly, such
amount was not deposited by the respondents within
time so granted by the Trial Court. The provisions of
Order 37 Rule 6(b) of CPC reads as under:
"6. At the hearing of such summons for judgment:
(b) if the defendant is permitted to defend as to the whole or any
part of the claim, the Court or Judge may direct him to give such
security and within such time as may be fixed by the Court or
Judge and that, on failure to give such security within the time
specified by the Court or Judge or to carry out such other
directions as may have been given by the Court or Judge, the
plaintiff shall be entitled to judgment forthwith."
9. As per the aforesaid provisions of law, on not depositing
the order amount, the plaintiff would be entitled for
decree as prayed in the suit. So, an impugned
application came to be filed below Exhibit 17 by the
petitioner/plaintiff, which came to be disposed of by the
Trial Court vide its impugned order dated 6th April 2024
only on the ground that respondents have preferred civil
revision application which is pending before this Court
and in view of that, no order can be passed on the
impugned application.
10. The approach of the Trial Court is thoroughly
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misconceived on facts as well as law, inasmuch as this
Court has not granted any stay / injunction against the
order passed by the Trial Court, whereby the
respondents were directed to deposit 50% of the claimed
amount in the suit. Prima facie, such order is not even
revisable under Section-115 of CPC, but for reasons best
known to the respondents, they have preferred the
revision application. This Court would not like to further
make comment upon the maintainability of such
revision.
11. In any case, when there is no stay granted by this Court
against the order passed by the Trial Court, whereby
respondents are directed to deposit 50% of the amount
claimed in the suit, being a condition to defend summary
suit, having not complied with such direction issued by
the Trial Court, as per the mandatory provisions of
Order 37 Rule 6(b) of CPC, the Trial Court was required
to have allowed the impugned application, which it
failed to do so, thereby committed a jurisdictional error
while passing impugned order. In light of the aforesaid
undisputed facts and provisions of law, I am of the view
that the impugned order suffers from gross illegality and
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also suffers from jurisdictional error committed by the
Trial Court while adjudicating the impugned application.
12. At the same time, it is brought to the notice of this Court
that pending the dispute between the parties, including
the present writ application, some of the payments have
been made by the respondents to the petitioner, which
requires to be adjusted against any deposit made by
respondents. Such aspect of the matter needs to be
examined by the Trial Court, if so requested.
13. Thus, the upshot of the aforesaid observations,
discussions and reasons, the present writ application
requires to be allowed, which is hereby allowed.
Consequently, the impugned order dated 06/04/2024
passed by the 3rd Additional Senior Civil Judge,
Bhavnagar below Exhibit 17 in Summary Suit No. 33 of
2023 is hereby quashed and set aside. Accordingly,
impugned application filed below Exhibit 17 in the
aforesaid suit is restored back on its file. The Trial Court
is hereby directed to hear and decide the impugned
application within 15 days from the date of receipt of the
copy of this order, albeit in accordance with law.
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14. Thus, the present application is hereby allowed to the
aforesaid extent. Rule is made absolute accordingly. No
order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J)
Nilesh
