Gujarat High Court
Firozaben W/O Abdul Rehman Qureshi D/O ... vs Kubrabanu W/O Zuber Campwala D/O Late ... on 12 September, 2025
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C/SCA/22647/2022 ORDER DATED: 12/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22647 of 2022
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FIROZABEN W/O ABDUL REHMAN QURESHI D/O LATE HAJI
ABDULKADAR RAHIMBHAI QURESHI & ORS.
Versus
KUBRABANU W/O ZUBER CAMPWALA D/O LATE HAJI ABDUL KADAR
RAHIMBHAI QURESHI & ANR.
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Appearance:
MR. AAMIR S PATHAN(7142) for the Petitioner(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/09/2025
ORAL ORDER
1. The present application is filed under Article 227 of the
Constitution of India seeking the following relief:-
"(A) This Hon'ble Court may be pleased to admit this Special
Civil Application.
(B) This Hon'ble Court may be pleased to allow this petition
by issuing an appropriate order or direction for quashing and
setting aside the order passed below Exh. 96, 98 & 100 in
Special Civil Suit No. 471/2016 by Ld. 33rd Addl. Senior
Civil Judge & Addl. Chief Judicial Magistrate, Vadodara
dated 17.09.2022 & 22.09.022 and further, be pleased to
allow Exh. 100 by allowing the Original Plaintiff to cross-
examine the Petitioner No. 6 in the interest of justice.
(C) Pending Admission, hearing and till final disposal of this
application, This Hon'ble Court may be pleased to allow to
stay the implementation, execution and operation of order
passed Civil Misc. Application No. 471/2016 by Ld. Principal
Senior Civil Judge, Vadodara dated 17.09.2022 &
22.09.2022 in the interest of justice.
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(D) Grant such other and further relief(s) as deemed just and
proper by this Hon'ble Court in the interest of justice."
2. At the outset, learned advocate Mr.Amir S. Pathan
appearing for the petitioners would submit that a hyper-
technical approach was taken by the Trial Court , whereby the
right of petitioner No.6, who happens to be defendant No.7 in
the suit in question, though closed but never reopened despite
request made to the Trial Court .
2.1. Learned advocate Mr. Pathan would state that on
17.09.2022, when the petitioner was subjected to cross-
examination, but as he was a Branch Manager in the bank at
Dabhoi, he could not make himself available due to congestion
of traffic and thereby, unable to reach in time. So, an
application below Exhibit 96, made by the respondent-plaintiff,
requesting that the right of petitioner No.6/defendant No.7 to
lead oral evidence be closed, was accepted.
2.2. Learned advocate Mr. Pathan would further state that
on the very day, through an impugned application below
Exhibit 98, request was made by the learned advocate of
petitioner No.6/defendant No.7 before the Trial Court to
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reopen his right to lead evidence, which was also rejected.
2.3. It is submitted that on 22.09.2022, an impugned
application filed below Exhibit 100 came to be filed with the
request to reopen the right of petitioner No.6/defendant No.7;
also did not appeal to the Trial Court, whereby it was rejected
with costs.
2.4. Learned advocate Mr. Pathan would respectfully submit
that the Trial Court has taken a very hyper-technical approach
and has not appreciated the reason for the non-appearance of
the petitioner no.6 on the day of his cross-examination, which
resulted into miscarriage of justice.
2.5. Learned advocate Mr. Pathan would submit that, as
per the present legal position of law, the rule of procedure is a
handmaid of justice, and accordingly, such hyper-technical
approach requires to be avoided by the Court while advancing
justice to the parties. At best, with reasonable costs, the right
of petitioner No.6/defendant No.7 could have been reopened.
2.6. Lastly, learned advocate Mr. Pathan would submit and
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request this Court that, on any condition, which may be
imposed upon petitioner No.6/defendant No.7, his right to lead
oral evidence may be reopened.
3. Heard learned advocate Mr.Amir S. Pathan for the
petitioners. Though served, none appears for the respondents,
including the original plaintiff.
4. This Court, vide order dated 23.11.2022, while issuing
notice in the matter, passed the following order:-
"Heard the learned advocate Mr. Aamir S. Pathan on behalf of the
applicant who by way of this application, challenges orders dated
17.9.2022 and 22.9.2022 whereby the learned Civil Judge (S.D)
Vadodara had closed the stage of cross-examination of the present
applicant himself and whereas the application for reopening of the
said stage had also been rejected.
1.1 Learned advocate Mr. Pathan on behalf of the applicant would
submit that the present applicant, was working as a Bank Manager
at Dabhoi and whereas while the impugned orders had been
passed, at the relevant point of time, the stage of the Civil Suit, was
upon crossexamination of the present applicant himself and
whereas in fact, the cross-examination of the present applicant was
in progress and on the given date, since the present applicant
could not reach the Court in time, the first order dated 17.9.2022
closing the stage of evidence of the present applicant-defendant,
had been closed. Learned advocate would also draw the attention
of this Court to a purshis given on behalf of the present applicant
on the very day by learned advocate appearing on behalf of the
applicant and whereas by way of such application, the applicant
had sought for reopening the stage of cross-examination of the
applicant himself that such application was also rejected on the
ground that the applicant, who was to be cross-examined was not
present in the Court. Learned advocate would submit that even
thereafter, the applicant had submitted an application on 22.9.2022
for reopening the stage and whereas even such application/purshis
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had been rejected on the ground that vide earlier order, the learned
Court had already decided the issue. Learned advocate would
submit that as such, the present applicant was a diligent litigant
and whereas prior to the impugned orders being passed, the
present applicant had been diligently following up the proceedings
of the suit and whereas the present applicant was also constantly
present on the dates when the Civil Suit had been listed. Learned
advocate would submit that as such the absence of the present
applicant, was for the first time and whereas the learned Trial
Court, ought to have considered the application preferred by the
applicant for reopening the right of being cross-examined.
2. Having considered the submissions made by learned advocate
Mr. Pathan and having perused the documents on record, this
Court is of the prima facie opinion that the present applicant, ought
to have been given another opportunity, more particularly if
required, the learned Court could have imposed some cost upon
the present applicant, to balance the equities. As it is by now it is a
well settled position, propounded by the Hon'ble Apex Court in
various judgments that the procedure is the hand-maiden of justice
and whereas the Courts should endeavor to ensure that substantial
justice is done rather than justice being sacrificed at the altar of
procedure. In the instant case, since it appears that the right of the
present applicant to defend himself, effectively, may have been
jeopardised, without finding any fault with the learned Court below,
at this stage, this Court deems it appropriate to pass the following
order :
"Issue Notice for final disposal returnable on 6.12.2022."
3. By way of interim relief, the learned 33rd Additional Senior Civil
Judge and Additional Chief Judicial Magistrate, Vadodara is
directed not to proceed with the Special Civil Suit No. 471 of 2016
till further orders.
4. Direct Service of the order is permitted.
5. To be listed on 6.12.2022 on top of the Board."
5. It appears that despite being granted sufficient
opportunity, none appeared on behalf of the respondents,
including the original plaintiff.
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6. It remained undisputed on record that defendant No.7
was not available for examination only on one day; his right
to cross-examination was closed. Though it was requested to
reopen on the very day, the Trial Court took a very hyper-
technical approach, whereby it rejected such requests. Even
within no time, on the next date of hearing, 22.09.2022, again
the Trial Court was requested by defendant No.7, citing
reasons for not reaching the Court in time; this was not
appealed to the Trial Court, and the impugned applications
were rejected with costs.
7. The reason for not making himself available for cross-
examination was due to the fact that as he was working as a
Branch Manager in the Dabhoi bank and due to traffic
conditions, he could not reach in time. Such explanation
cannot be said to be an excuse on the part of the litigant not
to remain present inasmuch as it cannot be said to be a
dilatory tactic to avoid cross-examination or to delay the trial.
8. It is a well-settled legal position that the rule of
procedure is a handmaid of justice, and a hyper-technical
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approach requires to be avoided by the Trial Court. It is
profitable to rely upon recent past decision of Hon'ble Apex
Court in a 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)
9. It is expected that the principles of natural justice be
observed while deciding any request made by a party, ensuring
that no serious prejudice is caused to any party when such a
prayer made by any party is accepted.
10. According to my view, with reasonable costs, the Trial
Court could have reopened the right of defendant No.7 to lead
his oral evidence instead of permanently closing his right to
lead evidence, which would be fatal to the defendant and
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affect his defense for all time.
11. Such approach adopted by the Trial Court resulted in a
miscarriage of justice and requires to be interfered with by this
Court while exercising its power under Article 227 of the
Constitution of India. [See - Waryam Singh vs. Amarnath,,
reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias
Bhudeb Mallick and Another vs. Ghoshal and Others, reported
in 2025 SCC OnLine SC 360 (para 53 to 58)]
12. In view of the foregoing discussion and reasons, I am of
the view that the present application requires to be allowed.
Nonetheless, as observed hereinabove, the petitioner is required
to deposit a sum of Rs.2,000/- with the DLSA, Vadodara as
costs, and on such condition, his right to lead oral evidence is
hereby reopened.
13. In view of the foregoing discussion and reasons, the
impugned orders dated 17.09.2022 & 22.09.2022 below Exhs.98
and 100 passed by 33rd Addl. Senior Civil Judge & Addl. Chief
Judicial Magistrate, Vadodara is hereby quashed and set aside.
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Consequently, the impugned applications filed below Exhibits
98 and 100 are hereby allowed on condition that petitioner
No.6 / defendant No.7 of Special Civil Suit No. 471 of 2016,
shall deposit a cost of Rs.2,000/- with DLSA, Ahmedabad
within a period of 10 days from the date of receipt of the
order.
14. Once, such order of costs is complied with by defendant
No.7, his right to lead oral evidence will be reopened, and he
will have to make himself available for examination on the day
fixed by the Trial Court.
15. It goes without saying that defendant No.7 shall not
delay the trial anymore and is required to make himself
available for his cross-examination unless there are unavoidable
circumstances on his part.
16. In view of the foregoing conclusion, the present
application is partly allowed. Interim relief stands vacated
forthwith. No order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J)
MOHD MONIS
