Gujarat High Court
Patel Girishbhai Ranchhodbhai vs Patel Naranbhai Adekarandas on 8 September, 2025
NEUTRAL CITATION
C/SCA/15999/2024 ORDER DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15999 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 15645 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 15998 of 2024
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PATEL GIRISHBHAI RANCHHODBHAI
Versus
PATEL NARANBHAI ADEKARANDAS & ANR.
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Appearance:
ARBAAZKHAN A PATHAN (9532) for the Petitioner(s) No. 1
MOHAMADZAID I SAIYED(8411) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/09/2025
ORAL ORDER
1. All these batch of writ applications questioning the
similar type of order passed by the trial Court, albeit in
different suits, whereby the petitioner of all these writ
applications, who happens to be plaintiff of respective suits,
not allowed to lead his oral evidence in the suit inasmuch as
affidavit in examination-in-chief in lieu of oral evidence is
discarded and his request to reopen his right to lead oral
evidence is rejected by the trial Court.
2. Having commonality of the issue in all these matters,
taken up for hearing together and decided by way of this
common order.
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3. As far as possible, the parties will be referred as per
their original position in the suit.
4. To understand the issue germane in all these matters,
the facts of Special Civil Application No. 15999 of 2024 is
considered, which as under.
4.1 The petitioner herein is original plaintiff, whereas
respondents are original defendants. The Regular Civil Suit
No. 17 of 2014 is filed seeking declaration and injunction,
which is pending before the Principal Civil Judge at
Chanasma, District : Patan. As such the nature of the suit and
prayers made therein not requires to be discussed further
except to state that it is instituted in the year 2014. The
issues are framed on 20.04.2017. The oral evidence in form
of affidavit in examination-in-chief was submitted by the
plaintiff on 01.09.2017. Thereafter, couple of adjournments
were granted by the trial Court, may be sought for by the
plaintiff or defendants, as the case may be.
4.2 It appears that learned advocate for the plaintiff
sought an adjournment on 04.02.2021 having filed
adjournment application below Exh. 56 in the aforesaid suit.
It further appears that the trial Court vide its order dated
04.02.2021 not only rejected such application but also
discarded oral evidence/ affidavit in examination-in-chief of
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plaintiff (Exh.30) thereby, closed the right of plaintiff to lead
oral evidence.
4.3 The plaintiff having came to know about such order
belatedly, filed impugned application below Exh. 89 on
13.12.2023 whereby, requested the trial Court to set aside
its order dated 04.02.2021 and on appropriate condition, the
plaintiff may be allowed to lead his evidence.
4.4 The impugned application appears to have been
contested by the defendants contending inter-alia that
despite granting all reasonable opportunities to the plaintiff,
he did not come forward for his oral evidence and filed such
impugned application after about two and half years.
4.5 After hearing the parties, the trial Court vide its order
dated 02.03.2024 rejected the impugned application and
also imposed cost of Rs. 1,000/ which is impugned in the
present writ applications. Such would be fate of plaintiff in
remaining matters as well.
5. 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 a writ of certiorari
or a writ in the nature to of certiorari or any other appropriate writ, order
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quashed and set aside order for reopening of rights of the petitioner
dated 02/03/2024 passed below Exibit-89 in Regular Civil Suit No. 17
of 2014 (Annex. D) which has been rejected by the Ld. Principal Civil
Judge, Chanasma Dist: Patan and further be pleased to reopen the
rights of the petitioner and further be pleased to direct the Ld. Court to
restore the evidence led by the petitioner.
b. Pending this petition YOUR LORDSHIPS may be pleased to
stay the further proceedings of the suit being RCS No. 17 of 2014,
Annex'D' till final disposal of this petition.
C. Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case."
6. Heard learned senior advocate Mr. Percy Kavina
assisted by learned advocate Mr. M. I. Saiyed for the
petitioner. Though served, none appeared on behalf of the
respondents.
7. Learned senior advocate Mr. Kavina would submit that
there was some lapses on the part of the petitioner, thereby
he could not remained present before the trial Court but it is
not the case where there was any gross negligence on the
part of the plaintiff whereby, right to lead his oral evidence
could have been discarded and so also closed. It is submitted
that there is no provision under law whereby, the trial Court
could have discarded the oral evidence/ examination-in-chief
of plaintiff merely because, he was not available for his cross
examination.
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7.1 Learned senior advocate Mr. Kavina would further
submit that when the right of plaintiff was closed and his
oral evidence was discarded on 04.02.2021, Covid-19 was at
its peak, inasmuch as it was second phase of Covid-19, and it
was too fatal. It is submitted that when entire World was
affected by Covid-19, it would be gainsaid that litigant would
not focus on the litigation rather securing his own life. He
would further submit that all plausible reasons and sufficient
cause made out by the plaintiff when filed the impugned
application, wherein it has been clearly stated that the
Advocate who was earlier engaged by the petitioner became
AGP and subsequent Lawyer engaged by him met with an
accident.
7.2 Learned senior advocate Mr. Kavina would further
submit that in view of such fact, the plausible explanation
submitted by petitioner inasmuch as, the impugned
application was not filed in earlier point of time but filed
after about two and half years. It is respectfully submitted
that, for the delay in filing of such application, the plaintiff
could have been subjected to appropriate terms and the
defendants could have been compensated in terms of
money, but in any case, the plaintiff's right to lead oral
evidence could not have been permanently closed by the
trial Court.
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7.3 Learned senior advocate Mr. Kavina would further
submit that no serious prejudice would cause to the other
side, inasmuch as, according to his instructions, the
defendants have yet not even started their oral evidence. It
is respectfully submitted that even if any part of the
defendants' oral evidence has already been recorded before
the Trial Court, then also, by permitting the plaintiff to lead
his oral evidence, and on its completion, then after,
defendants may be granted liberty to further lead their oral
evidence, if so required.
7.4 Learned senior advocate Mr. Kavina would further
submit that as per settled legal position of law, rule of
procedure is handmaid of justice and hyper technical
approach requires to be kept aside by the trial Court unless it
is shown from the record that there is mala-fide and or a
dilatory tactics used by the plaintiff just to delay the trial. It
is respectfully submitted that the petitioner happens to be
plaintiff would rather eager to complete the suit
proceedings instituted by him and there is no reason for him
to delay the trial of the suit instituted by him.
7.5 At last, learned senior advocate Mr. Kavina would
request this Court that considering the totality of the facts
of the case, this Court may exercise its power under Article
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227 of the Constitution of India in favour of the petitioner
and on any terms, which may put upon the plaintiff, his right
to lead oral evidence may be reopened in the interest of
justice.
8. Having heard learned senior advocate Mr. Percy Kavina
for the petitioner at length and after going through
impugned application and so also impugned order passed
thereon by Trial Court, following emerges.
9. The facts narrated herein above remains undisputed. The
petitioner is original plaintiff, whereas respondents are
original defendants. The oral evidence in form of
examination-in-chief was filed by the plaintiff way back in the
year 2017 but for any reasons, till 04.02.2021, he was not
subjected to cross examination.
10. This Court has gone through the order dated
04.02.2021 passed by the trial Court below Exh. 56 wherein
the trial Court has not only rejected the adjournment
application but also discarded the affidavit of examination-
in-chief of plaintiff filed below Exh. 30 whereby, closed the
right of plaintiff to lead oral evidence.
11. The plaintiff having came to know about the aforesaid
impugned application filed impugned application below Exh.
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89 in the suit, whereby requested the trial Court to reopen
his right to lead his oral evidence. The plaintiff stated in the
impugned application that Advocate engaged by the plaintiff
became AGP and another Advocate engaged by him met
with an accident, whereby, the plaintiff was not knowing
about the order dated 04.02.2021. It further appears from
bare reading of the impugned order that such statement of
fact mentioned in the impugned application was not
questioned by the defendants having chosen not to file any
reply, al-beit, oral objection being made before the trial
Court.
12. In light of the aforesaid undisputed facts, what is
gathered from the record that due to reasons stated in the
application, below Exh. 89, the plaintiff was not remained
present for his cross examination and so also enable to file
the impugned application below Exh. 89 within reasonable
time after passing of the order below Ex. 56. The trial Court
though taken note of the fact that the Hon'ble Apex Court in
its Suo Moto Petition No. 3 of 2020 suspended the period of
limitation to file any proceeding but forget to notice that it
was second phase of Covid -19 when right of plaintiff was
closed and his oral evidence was discarded i.e. 04.02.2021. It
would be gainsaid that when people were facing
unprecedented situation due to Covid-19, first they tried to
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secure their life rather than focus on their litigation. If such
aspect could have been taken note by the trial Court in
correct perspective, and it could have exercised its positive
discretion so vested in it, in favour of the plaintiff in more
effective manner, it would have meet the ends of justice.
Unfortunately, trial Court fail to do so.
13. It is true that there is a delay on the part of the plaintiff
having file impugned application in the month of December,
2023 much after the effect of Covid-19 got over.
Nonetheless, the fact so stated by the plaintiff in his
impugned application that his earlier Advocate engaged
became AGP and another one engaged, met with an
accident. These facts and other one stated in the impugned
application remained uncontroverted on the record.
14. Furthermore, it is also requires to be observed that
defendants might have filed his oral evidence in form of
examination-in-chief but there is nothing to show that their
cross-examination so far even commence. Even otherwise, if
such would be the position then also the trial Court could
have exercised its jurisdiction so vested in it, whereby
putting certain condition, the plaintiff could have been
allowed to lead his oral evidence and then after, defendants
would have been permitted to lead his evidence. Nothing
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sort of done by trial Court to advance justice to the party.
15. It has been pointed out to this Court that there were 13
adjournments appears to have been sought for by the
defendants having granted, whereas five times plaintiff have
sought for adjournment and about four times the Court was
not available between 04.02.2021 to 13.12.2023. It would be
cause of delay in filing impugned application. This Court
would not like to go into such details though pointed out by
the learned senior advocate Mr. Kavina during the course of
his submission. Rather it would like to say that technicality
never march over the dispensation of justice.
16. According to this Court and its of the view that
whenever for any good reason, right of the parties to lead
evidence foreclosed unless there is any mala-fide intention,
any dilatory tactics used to delay the trial of the suit, and or
it causes serious prejudice to opposite party, if any such
factor noticed by the trial Court, in all other cases, ordinarily,
the trial Court should exercise its positive discretion so
vested in it, in favour of the party whose right foreclosed to
lead evidence, whereby, Court should reopen right of such
party to lead evidence on any appropriate terms. At the
same time, the trial Court can always impose strict
conditions including the exemplary cost to deter the party
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not to repeat any such attempt in future, which cause
further delay the trial of the suit.
17. At this stage, it is apposite to refer and rely on the
decision 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....."
(emphasis supplied)
18. Likewise, the judgment of Hon'ble Apex Court so relied
by the learned senior advocate Mr. Kavina for the petitioner
having submitted with these writ applications, in the case of
Levaku Pedda Reddamma and others Vs. Gottumukkla
Venkata Subbamma and another reported in 2022 Live Law
(SC) 533, which is also similar line, wherein held thus :-
"The defendant Nos.2 to 5 are in appeal aggrieved against the
order passed by the High Court affirming the order passed by the trial
Court refusing to permit the appellant to produce additional documents
in terms of Order VIII Rule 1 of the Code of Civil Procedure, 1908.
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We find that the trial Court as well as the High Court have
gravely erred in law in not permitting the defendants to produce
documents, the relevance of which can be examined by the trial Court
on the basis of the evidence to be led, but to deprive a party to the suit
not to file documents even if there is some delay will lead to denial of
justice.
It is well settled that rules of procedure are hand-maid of justice
and, therefore, even if there is some delay, the trial Court should have
imposed some costs rather than to decline the production of the
documents itself,
Consequently, the appeal is allowed. The orders passed by the
trial Court and the High Court are set aside. The appellants-defendant
Nos.2 to 5 are permitted to file the documents and to prove the same
in accordance with law.
Mr. Nazki states that the plaintiffs-respondents should be
permitted to lead additional evidence, if any, on the basis of the
documents now produced by the defendants. We accept the request.
The Plaintiff shall lead additional evidence, if any, before the
defendants are given an opportunity to lead evidence to rebut the
evidence produced by the plaintiff."
(emphasis supplied)
19. Having considered aforesaid peculiar facts of the
present case and so also ratio of the aforesaid decisions
having so applied herein, in my view, one opportunity
requires to be granted to the plaintiff, whereby allow him to
lead his oral evidence. So, he would not feel deprived of the
principles of natural justice, which needs to be observed and
followed as heart of any judicial process. Ultimately, the
truth requires to be ascertained in the course of the trial and
as such, litigation is nothing but journey towards truth.
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20. But at the same time, having so observed hereinabove
and so felt that plaintiff is also required to put to certain
terms, I would like to pass following order.
(i) The impugned orders dated 02.03.2024 passed below
Exhibit -89, 91 & 92 in Regular Civil Suit Nos. 17, 18 & 19 of
2014 by the Principal Civil Judge, Chanasma, District : Patan
are hereby quashed and set aside. Consequently, the
impugned applications filed below Exh. 89, 91 & 92 in the
aforesaid suits are hereby allowed on the following terms.
(ii) The plaintiff is required to deposit the cost of Rs.
5,000/- in the each suit, and same be paid to the defendants.
Such amount of cost be deposited within 15 days from today.
Such deposit of the cost is over and above already ordered
by the trial Court.
(iii) Once, such amount of cost will be deposited before the
trial Court concerned, the trial Court shall disburse the
aforesaid amount of cost in favour defendants on proper
verification in accordance with law.
(iv) Having deposited the amount of costs by the plaintiff
as aforesaid, his oral evidence in form of examination-in-
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chief requires to be taken on record (Exh.30), so discarded by
the trial Court, which is set aside herein above.
(v) The trial Court shall fix the date of his cross
examination, on day on which, the plaintiff will have to
remain present for his cross examination, failing which it will
open for the trial Court to pass necessary order in the matter
including foreclose right of plaintiff to lead oral evidence.
(vi) It is further clarified and given liberty in favour of the
defendants, though not appeared before this Court, if by this
time, any oral evidence of defendants progressed in any of
the suit, it will open for them to lead further oral evidence
once evidence of plaintiff gets over / closed.
21. In view of the forgoing observations, discussions and
reasons, the present writ applications are partly allowed to
the aforesaid extent, albeit subject to aforesaid costs.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SALIM/
