Gujarat High Court
Daud Ismail Jat vs Harun Ali Mamad Jat on 16 September, 2025
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C/SCA/12882/2025 ORDER DATED: 16/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12882 of 2025
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DAUD ISMAIL JAT
Versus
HARUN ALI MAMAD JAT & ORS.
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Appearance:
MR DHRUV H CHAUDHARY(12328) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/09/2025
ORAL ORDER
1. Heard learned advocate Ms. Krutha Bhavsar for learned
advocate Mr. Dhruv H. Chaudhary for the petitioner.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief.
"8. The Petitioner therefore prays that this Hon'ble Court be
pleased to issue a Writ of Mandamus or a Writ in Mandamus or a Writ
of Certiorari or a Writ in the nature of Certiorari or any other
appropriate writ, direction or order and be pleased to granted the
following interim relief:
a. Pending hearing and final disposal of the present
application, stay the proceedings before the Ld. Principal Civil
Judge, Mandvi - Kutch being Regular Civil Suit No. 90 of 2018-
Harun Alimamad Jat and Ors. vs. Mohan Murji Gada.
b. Such other and further reliefs as may be deemed fit in the
interest of justice.
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9. The Petitioner therefore pray that this Hon'ble Court be pleased
to issue Writ of Mandamus or a Writ in Mandamus or a Writ of
Certiorari or a Writ in the nature of Certiorari or any other appropriate
writ, direction or order and be pleased to:
a. Quash and set aside the order dated 13.08.2024
attached as Annexure-A to the present petition and thereby
allow the application under Exhibit 33 and permit the Petitioner
to file his written statement.
b. Such other and further reliefs as may be deemed fit in the
interest of justice and good conscience."
Facts of the case
3. The petitioner herein is original defendant No.2,
whereas respondents No. 1 to 4 are original plaintiffs and
respondent No.5 is original defendant No.1 of Regular Civil
Suit No. 90 of 2018 pending before the Principal Civil Judge,
Mandvi, Kutch.
3.1 It is remain undisputed as stated in the impugned
application by the defendant No.2 himself that suit notice
came to be served and received by his wife on 11.01.2019
then-after, he appeared through Lawyer on 22.01.2019. It is
also remain undisputed that despite granting reasonable
opportunities to the defendant No.2, no written statement
was filed by him, thereby, right to file written statement was
closed on 25.06.2019.
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3.2 It further appears as recorded in the impugned
application that injunction application was heard and
decided by the trial Court on 29.10.2021, whereby, it has
partly allowed such application and parties to the suit
directed to maintain status qua till disposal of the suit
3.3 The issues were framed on 06.12.2021 and then-after,
the plaintiff stepped into witness box, given his affidavit in
lieu of examination-in-chief on 08.08.2023, wherein also,
neither defendant No.2 nor his Advocate remained present
for his cross examination and accordingly his right was also
closed to cross examine the plaintiff. Thereafter, the witness
affidavit came to be filed by the plaintiff on 19.02.2024 and
thereafter also one witness came to be examined by the
plaintiff.
3.4 The impugned application came to be filed by the
defendant No.2 on 13.08.2024 whereby, he requested the
trial Court to reopen his right to file written statement.
3.5 After hearing the parties, the trial Court vide its order
dated 13.08.2024 rejected the impugned application. Such
order was passed on 13.08.2024 came to be questioned by
way of the present writ application on 06.09.2025.
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Submission of the petitioner -defendant No.2
4. Learned advocate Ms. Krutha Bhavsar would submit
that there was no elaborate delay on the part of defendant
No.2 not to file written statement within stipulated time but
having said so in the impugned application that due to
ignorance of law, illiteracy of defendant No.2 and due to
Covid-19 situation, he could not file written statement in
time.
4.1 Learned advocate Ms. Bhavsar would further submit
that defendant No.2, having engaged a lawyer, was fully
dependent upon his advice and, being unfamiliar with the
rules of procedure, ultimately suffered as his right to file
written statement closed.
4.2 Learned advocate Ms. Bhavsar would further submit
that when there is no deliberate attempt on the part of
defendant No.2 not to file written statement, in the interest
of justice, by even imposing cost, the right of defendant no.2
to file written statement could have been reopened by the
trial Court.
4.3 Learned advocate Ms. Bhavsar would submit that as per
settle legal position of law, in such type of cases, leniency to
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be shown in favour of the applicant- defendant No.2 herein,
thereby, if defendant No.2 allowed to file written statement,
it would nothing but to advance justice to the parties,
inasmuch as there is no harm caused to the plaintiff.
4.4 Lastly, learned advocate Ms. Bhavsar would also submit
that the petitioner is ready and willing to deposit any cost
and condition which may be imposed by this Court, if
consider the request of the petitioner to file his written
statement.
4.5 Making the above submission, learned advocate Ms.
Bhavsar would request this Court to allow the present writ
application.
Point for determination
Whether in the facts and circumstances of the present
case, is there any gross error of law and or jurisdictional error
committed by the trial Court while rejecting the impugned
application of the defendant No.2, thereby not reopened his
right to file written statement ?
Analysis
5. The facts which are stated hereinabove are not in
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dispute. The notice was duly served upon defendant No.2 in
the month of January, 2019. Sufficient opportunity was
given to him to file written statement but having not availed,
his right to file written statement was closed by the trial
Court on 25.06.2019. Thereafter, considerable time had
elapsed, inasmuch as the injunction application came to be
decided by the trial Court on 29.10.2021 and issues were
framed on 06.12.2021 (both happened during Covid-19).
5.1 It further appears that the plaintiff has also submitted
his evidence affidavit on 08.08.2023 and must have been
cross examined by defendant No.1 who timely file written
statement. As defendant No.2 did not remain present for
cross examination of the plaintiff, his right to cross
examination was also closed.
5.2 The plaintiff has also examined two witnesses on
19.02.2024 and thereafter, till such period, there was no
attempt ever made by the defendant No.2 to file any
application requesting the trial Court to reopen his right to
file written statement. The impugned application came to be
filed only on 13.08.2024.
5.3 The aforesaid facts and events considered together, it
reflects the complete callousness, indolence and gross
negligence on the part of defendant No.2, having not filed
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written statement for years together. It appears that
defendant No.2 wake up from slumber when the plaintiff
virtually concluded his evidence. Such an act of defendant
No.2 would not satisfy the conscious of the Court to grant
any indulgence in his favour, inasmuch as, as per the settle
legal position of law, the Court should not help a litigant who
remain indolent for years together.
6. In view of the aforesaid facts, the defendant could not
in a position to explain the delay. When the impugned
application itself is bereft of any material particulars and in a
caviler manner filed before the trial Court, it has correctly
not entertained by the trial Court as it could not have
allowed it in a casual manner, the way in which impugned
application was filed.
7. Thus, in absence of any cogent and sufficient reasons
set out by defendant in impugned application as to why he
could not file written statement, no fault can be found with
trial court when it rejected impugned application.
8. At this state, it would be apposite to refer and rely upon
the decision of the Hon'ble Apex Court in the case of Atcom
Technologies Ltd. vs Y.A. Chunawala And Co. reported in
(2018) 6 SCC 639, wherein it is held as under:-
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"13. We shall proceed on the basis that summons in Suit No. 4870 of
1999 were served only in the year 2009. In this behalf, it may be stated
that in this suit, unconditional leave to defend was granted by the
learned Single Judge on March 16, 2002. By the same order, all three
suits were directed to be tried together. Therefore, Vakalatnama in the
suit was also filed and on the dates fixed before the Court,
respondents were appearing having knowledge about the Suit No.
4870 of 1999 as well. Obviously, this leave to defend was granted after
the respondents had put in appearance and filed application for grant
of leave to defend. Thus, summons in the suit were served upon the
respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of
Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter,
Writ of Summons were not served again upon the respondents.
However, in any case, these summons were served in the year 2009.
Therefore, it was incumbent upon the respondents to show as to in
what manner they were prevented from filing the written statement.
17. We fail to persuade ourselves with this kind of reasoning given
by the High Court in condoning the delay, thereby disregarding the
provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908
and the spirit behind it. This reason of the High Court that delay was
condoned 'by balancing the rights and equities' is farfetched and, in the
process, abnormal delay in filing the written statement is condoned
without addressing the relevant factor, viz. whether the respondents
had furnished proper and satisfactory explanation for such a delay.The
approach of the High Court is clearly erroneous in law and cannot be
countenanced. No doubt, the provisions of Order VIII Rule 1 of the
Code of Civil Procedure, 1908 are procedural in nature and, therefore,
handmaid of justice. However, that would not mean that the defendant
has right to take as much time as he wants in filing the written
statement, without giving convincing and cogent reasons for delay and
the High Court has to condone it mechanically. ........ ."
9. Thus, in view of the aforesaid pronouncement of law by
the Hon'ble Apex Court in the case of Atcom Technologies
Ltd. (supra) and considering the aforesaid undisputed facts
and circumstances of the case and having not found any
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cogent and convincing reasons so assigned by petitioner-
defendant no.2 in his impugned application for not able to
file written statement at given point of time, I do not find
any gross error of law and or jurisdictional error committed
by trial Court while rejecting impugned application.
10. Before parting, it is also required to be considered that
despite rejection of prayer by the trial Court not reopen and
thereby, not allowed defendant No.2 to file his written
statement, passed on 13.08.2024, as observed hereinabove,
the present writ application came to be filed on 06.09.2025.
This itself suggested that how casually and routinely
defendant No.2 prosecuted his legal remedy available to him
under law. Such conduct of defendant No.2 disentitled him
to get any discretionary relief.
11. It is also required to be considered that there is a
limitation of this court while exercising its power under
Article - 227 of the Constitution of India which is well defined
by numerous judgments of Hon'ble Supreme Court of India.
[See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar
Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and
Garment Craft v. Prakash Chand Goel, reported in (2022) 4
SCC 181 (Para 15 and 16)].
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12. Considering the aforesaid peculiar facts and
circumstances of the case and taking note of the ratio of the
decision of the Hon'ble Apex Court as referred hereinabove,
I am also of the view that defendant No.2 having gross
negligence in filing impugned application not to entitle to
get any relief. As such, this Court is unable to find any fault
with the impugned order passed by the trial Court, rather, it
is in complete agreement with the view taken by the trial
Court. Thus, impugned order dated 13.08.2024 passed by Ld.
Principal Civil Judge, Mandvi - Kutch below Ex. 33 in being
Regular Civil Suit No. 90 of 2018 is hereby confirmed.
Conclusion :
13. Having not found any merit in the present writ
application and in view of the aforesaid observation,
discussion and reasons assigned, the present writ-application
requires to be rejected which is hereby rejected. No order as
to costs.
(MAULIK J.SHELAT,J)
SALIM/
