Gujarat High Court
Smt.Dayavanti Premchand ... vs Gujarat Electricity Board Now As ... on 24 September, 2025
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 122 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 122 of 2013
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 122 of 2013
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2023
In R/APPEAL FROM ORDER NO. 122 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
==========================================================
SMT.DAYAVANTI PREMCHAND THROU.P.O.A.MANOJ PREMCHAND
KAGNANI & ANR.
Versus
GUJARAT ELECTRICITY BOARD NOW AS PASCHIM GUJARAT VIJ
CO.LTD. & ORS.
==========================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1,2
MR ASHISH H SHAH(2142) for the Respondent(s) No. 4
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/09/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Ashish M. Dagli for the
appellant and learned advocate Mr. Dipak R. Dave for
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
respondent No.1- contesting respondent.
2. The present Appeal from Order is filed under Order 43
rule 1(d) of CPC by original defendant No.5 of the suit,
challenging the order dated 04.02.2013 passed by the
Principal Senior Civil Judge, Gandhidham- (Kutchh) below
Exh.1 in Civil Misc. Application No. 8 of 2000 filed under
Order 9 rule 13 of CPC, whereby the trial Court rejected her
application.
3. The appellant No.1 herein happens to be original
defendant No.5 of Special Civil Suit No. 92 of 1996 filed by
respondent No.1 herein against her as well as other
respondents. The suit came to be decreed ex-parte against
the appellant herein by the trial Court vide its judgment and
decree dated 24.08.2000 thereby, the trial Court directed
the original defendants No. 4 & 5 to pay Rs. 8 lakhs with 24%
interest. It is required to be noted here that while granting
interest at the rate of 24%, only in operative portion, the
trial Court observed that as defendants No.4 & 5 did not
remain present, order of interest passed against them.
3.1 The appellant came to know about such ex-parte
judgment and decree from the office of respondent No.1 on
17.11.2000, thereby, immediately applied for its certified
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
copy and filed impugned application alongwith defendant
No.4 under Order 9 rule 13 on 07.12.2000 being CMA No. 8
of 2000. It further appears that during pendency of the
impugned application, defendant No.4 died, so deleted. To
support her say, the oral evidence of appellant as well as her
witness allowed to be taken on record by the trial Court . The
respondent No.1 has opposed such impugned application on
merit.
3.2 After hearing the parties, the trial Court vide its order
dated 04.02.2013 has rejected such application. Hence, the
present Appeal from Order.
4. This Court vide its order dated 12.12.2013, admit the
present appeal and also directed the appellant herein to
deposit decreetal amount. It is so observed that necessary
order for disbursement of amount shall be passed
thereafter. It further appears that time and again when the
matter was taken up for hearing before the previous Co-
ordinate Benches of this Court, the appellant shown her
willingness to settle down the issue. It is reported to this
Court that as on date, the appellant has deposited the sum
of Rs. 8 lakh with the trial Court. It is not full decretal
amount.
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
5. This Court vide its order dated 14.08.2025 passed the
following order.
"1. Heard learned advocate Mr. Kaushal Modi for learned advocate
Mr. Ashish Dagli for the appellants and learned advocate Mr. S.D.
Motwani for learned advocate Mr. Dipak Dave for the respondent
No.1-contesting respondent.
2. At the outset, learned advocate Mr. Modi pointed out to this
Court that pursuance of the order dated 30.07.2025, an offer of
settlement has been made to the respondent- Electricity Company,
which is duly received by Senior Executing Officer, P.GV.C.L,
Gandhidham on 02.08.2025. It is further pointed out to this Court that
such offer of settlement also sent to the Higher Officer of respondent-
Corporation situated at Rajkot.
2.1 Learned advocate Mr. Modi for the appellants would states that
as per the offer of settlement made by the appellants, they are ready
and willing to pay further amount of Rs. 5,68,620/-, over and above
the amount so deposited earlier by the appellants lying with the
Executing Court i.e. Rs. 8 lakhs.
3. Learned advocate Mr. Dave for the respondent No.1 is awaiting
the instruction of his client to the offer of settlement proposed by the
appellants.
4. This matter is of the year 2013, whatever decision, the opponent
No.1 wants to take and to give any counter offer of settlement, it may
do so before the next date of hearing.
5. Stand over to 03.09.2025. To be listed on top of the board."
6. Pursuant to the aforesaid order and the order dated
17.09.2025 passed by this Court, learned advocate Mr. Dipak
Dave appearing on behalf of respondent No.1- Electricity
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
Company informed this Court that the competent Authority
of Electricity Company is not agreeable to the proposal so
made by the appellant herein, inasmuch as, considering the
peculiar facts and circumstances of the case, it would not be
possible for the respondent No.1 - Electricity Company to
settle the matter.
7. In the impugned application, the appellant would
submit that summon which was issued by trial Court in the
suit to be served upon her, never received by her, inasmuch
as the same was received by her nephew namely Bhagchand
i.e. son of her elder brother-in-law. Her nephew was also
examined before the trial Court in the impugned application,
wherein such fact came on record.
8. Nonetheless, as observed by the trial Court in its
impugned order that during her cross examination, the
appellant herein admitted that such summon was handed
over by her nephew to her. Further, on one breath, she
admitted that she knew about the pendency of the suit but
on the next breath, she denied such fact.
9. Be that as it may, it appears from the documents which
are made available to this Court and so also after going
through the impugned application and impugned order
passed thereon, it is remain undisputed that summon was
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
never directly served upon the appellant- defendant No.5.
10. The service of summons/notice of the suit proceedings
is governed/ provided by the provisions of Order V of the
CPC. As per Rules 11 and 12 of Order V, it is mandatory that
when there are more than one defendant, summons shall be
issued and served individually upon each defendant. It
should be served in-person to defendant, unless he has an
agent empowered to accept the service. Likewise, as per
Order V rule 15 of CPC, summon can be served upon adult
family members of the defendant. Such provisions of law
requires to be reproduced for better understanding and
clarity :-
" ORDER V
ISSUE AND SERVICE OF SUMMONS
11. Service on several defendants.--Save as otherwise prescribed,
where there are more defendants than one, service of the summons
shall be made on each defendant.
12. Service to be on defendant in person when practicable, or on his
agent. --Wherever it is practicable, service shall be made on the
defendant in person, unless he has an agent empowered to accept
service, in which case service on such agent shall be sufficient.
15. Where service may be on an adult member of defendant's family.--
Where in any suit the defendant is absent from his residence at the
time when the service of summons is sought to be effected on his at
his residence and there is no likelihood of his being found at the
residence within a reasonable time and he has no agent empowered to
accept service of the summons on his behalf, service may be made on
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
any adult member of the family, whether male or female, who is
residing with him.
Explanation. --A servant is not a member of the family within the
meaning of this rule."
(emphasis supplied)
11. The conjoint reading of the aforesaid Rules would
indicate that Bailiff was required to serve summons to the
defendant concerned and in absence of such defendant and
when it is a situation when there is no likelihood of such
defendant being found at the residence within reasonable
time and he has no agent empowered to accept the service
of summon, in that situation only, summon can be served
upon any adult member of the family, who is residing with
such defendant.
12. It is not made out and not clear from the record,
inasmuch as no contrary evidence led by the respondent
No.1 herein that when such summon was served upon the
appellant- defendant No.5, her nephew namely Bhagchand
was residing along with her house and she was not found at
given address. This aspect has not been taken care of and
noticed by the trial Court when adjudicated the impugned
application.
13. Further more, it also came on record that such summon
was served upon Bhagchand on 27.12.1996, whereas date of
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
hearing of the suit was fixed on 30.12.1996. So, there may be
a situation whereby, hardly any time left to the party to
response to such summon, especially when there would be a
defective service on the part of Bailiff having not personally
served the summon upon the defendant, it amounts to
violation of principle of natural justice.
14. It has also come on record that defendant No.4 who
died during the pendency of the impugned application, was
looking after the business affairs but was not available when
the suit proceedings was pending before the trial Court, as
due to business purposes, he was residing at Surat and not at
given address. The husband of the appellant No.1-defendant
No.5 appears to be no more (died), but might have joint
business along with other defendants, who are already
exonerated from their liability to make any payment by the
trial Court as suit dismissed qua them.
15. These are the few vital facts which are germane from
the record of the suit and learned advocate Mr. Dipak Dave
appearing for respondent no.1 is enable to counter it. At the
same time, learned advocate Mr. Dave would respectfully
submit that when this Court directed the appellant to pay
decretal amount, and having not deposited, no grace to be
shown by this Court, inasmuch as due to negligent act on the
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
part of the appellant, sufferer would be Electricity Company,
who is public sector undertaking. So, learned advocate Mr.
Dave would request this Court that even if on any technical
reasons, this Court would like to interfere with the impugned
order, and to give one opportunity to the appellant to
defend the suit on merit, suitable condition may be imposed
upon the appellant by ordering her to deposit substantial
amount and respondent No.1- plaintiff may be allowed to
recover the amount, which is already deposited and which
may be deposited by the appellant herein.
16. Learned advocate Mr. Ashish M. Dagli, under the
instruction of son of appellant namely Prakash Premchand,
who is present before the Court, states that without
prejudice to the rights and contentions of the appellant, the
appellant is ready and willing to deposit further sum of Rs.
12 lakhs with the trial Court on or before 24.11.2025.
Learned advocate Mr. Dagli would further submit that on
such condition, this Court may allow the impugned
application in the interest of justice and give one
opportunity to the appellant to defend the suit in
accordance with law.
17. Having noticed the aforesaid facts and after
appreciating the submissions so canvassed by the learned
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
advocates for the respective parties, this Court is of the view
that due to peculiar facts of the present case and as
appellant is ready to deposit substantial amount vis-à-vis
decree passed by the trial Court, one opportunity requires to
be granted to appellant-defendant No.5 to defend the suit
on merit.
18. Thus, in view of above, I pass the following order :-
(i) The impugned order dated 04.02.2013 passed by the
Principal Senior Civil Judge, Gandhidham (Kutchh) below
Exh.1 in CMA No. 8 of 2000 is hereby quashed and set aside
on condition that the appellant- defendant No.5 shall
deposit further sum of Rs. 12 lakhs with the trial Court
concerned on or before 24.11.2025 as agreed before this
Court.
(ii) Once such amount of Rs. 12 lakhs will be deposited by
the appellant herein, the impugned application being CMA
No. 8 of 2000 stands allowed and consequently, the
impugned judgment and decree dated 24.08.2000 passed by
the trial Court in Special Civil Suit No. 92 of 1996 will be
quashed and set aside subject to fulfilling the aforesaid
condition.
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
(iii) Once, on depositing the amount of Rs. 12 lakhs and
already deposited the amount of Rs. 8 lakhs, in all total
deposit of Rs. 20 lakhs plus any accrued interest on amount
of Rs. 8 lakhs, all such amount be paid to the respondent
No.1-original plaintiff- Electricity Company by the trial Court.
(iv) At the time of disbursing such amount in favour of
respondent No.1- Electricity Company, an undertaking shall
have to be filed by the original plaintiff through its
competent/responsible officer that such withdrawal of
amount will be subject to final outcome of the suit filed by
the Electricity Company. In a case, where appellant-
defendant No.5 succeeds in her defence and held not liable
to pay any amount to plaintiff or lesser amount than already
deposited by her, plaintiff will have to return the amount so
withdrawn by it as aforesaid to appellant-defendant No.5.
(v) When the aforesaid order will be complied with by the
appellant herein, the Special Civil Suit No. 92 of 1996 stand
restore back on its original file. Thereafter, as per further
order which may be passed by the trial Court, the appellant
shall have to file her written statement and then-after the
trial Court requires to decide such suit afresh as
expeditiously as possible, in accordance with law.
NEUTRAL CITATION
C/AO/122/2013 JUDGMENT DATED: 24/09/2025
undefined
19. It is made clear that if for any reason, the appellant
herein will not deposit the further amount of Rs. 12 lakhs
before the trial Court on or before 24.11.2025, the impugned
order dated 04.02.2013 passed by the trial Court would not
be disturbed rather treated as confirmed.
20. In view of the foregoing observations, discussions and
reasons, the present Appeal from Order is hereby partly
allowed to the aforesaid extent, subject to compliance of
this order by appellant.
21. As a sequel, all Civil Applications, if any, pending stand
disposed of accordingly.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
