Gujarat High Court

Dipak Jayantilal Shah vs Manish M Raval on 25 September, 2025

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                              C/SCA/624/2019                                  ORDER DATED: 25/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 624 of 2019

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                                                     DIPAK JAYANTILAL SHAH
                                                             Versus
                                                        MANISH M RAVAL
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                      Appearance:
                      MR ANUJ K TRIVEDI(6251) for the Petitioner(s) No. 1
                      MR TEJAS S TRIVEDI(5692) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                        Date : 25/09/2025

                                                         ORAL ORDER

1. Rule returnable forthwith. Learned advocate Mr. Tejas S.

Trivedi waives service of notice of rule on behalf of the

respondent.

2. Heard learned advocate Mr.Anuj K. Trivedi for the

petitioner and learned advocate Mr.Tejas S. Trivedi for the

respondent.

3. The present application is filed under Article 227 of the

Constitution of India, seeking the following relief:-

"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 29th November, 2018, passed by

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the Hon'ble Civil Court, Ahmedabad, below Exhibit 15 in Summary Suit No.545 of 2018;

(B) Your Lordships may be pleased to issue an appropriate writ, order or direction, directing that the Leave to Defend Affidavit of the Petitioner is taken on record in Summary Suit No.545 of 2018, and considered by the Hon'ble Civil Court, Ahmedabad;

(C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the further proceedings of the Summary Suit No.545 of 2018, before the Hon'ble Civil Court, Ahmedabad;

(D) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order dated 29th November, 2018, passed by the Hon'ble Civil Court, Ahmedabad, below Exhibit 15 in Summary Suit No.545 of 2018;

(E) Your Lordships may be pleased to grant an ex-parte interim relief in terms of prayers (C) and (D) hereinabove; (F) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things."

4. At the outset, learned advocate Mr. Anuj, appearing for

the petitioner/original defendant, stated that the Trial Court,

while rejecting the impugned application, thereby, not

reopening the right of the defendant to leave to defend, is

unreasonably, erroneously, and contrary to the principles of

natural justice, requires interference by this Court.

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4.1. Learned advocate Mr. Anuj would submit that the

defendant appeared in the suit, but there were talks of

settlement ongoing between the parties, thereby, he sought

time in the matter, and on one date, his advocate could not

remain present, and on such date, the defendant's right to file

leave to defend was closed.

4.2. Learned advocate Mr. Anuj would further state that

upon noticing such fact, the impugned application was

immediately filed along with the leave to defend application. It

is submitted that there was no negligence, much less any gross

negligence or dilatory tactic, on the part of the petitioner in

not filing leave to defend within stipulated time, but for the

reasons set out in the application, and so also, the fact that

settlement talks were ongoing between the parties, the

defendant could not file the leave to defend application within

the stipulated time.

4.3. Learned advocate Mr. Anuj would submit that, as per

established legal principles, the rule of procedure is the

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handmaid of justice, and the Trial Court is required to avoid a

hyper-technical approach.

4.4. Lastly, Mr. Anuj would submit that, upon payment of

reasonable cost, the defendant may be allowed leave to defend

application as it is ready and submitted the same alongwith

the application.

4.5. Making the above submission, learned advocate Mr.

Anuj requested this Court to allow the present application.

5. Per contra, learned advocate Mr. Tejas, appearing for the

respondent, would vehemently object this application,

contending inter alia that neither days of delay nor any

proper explanation coming forth on the part of the defendant

when filed the impugned application. It is submitted that the

so-called talks of settlement between the parties are not

factually correct, inasmuch as adjournment applications filed

before the Trial Court were not served upon the plaintiff.

5.1. Learned advocate Mr. Tejas would further submit that

the defendant was required to file leave to defend within the

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stipulated time, as the plaintiff had filed a summary suit for

recovery of Rs.66,50,648/-. It is submitted that the Trial Court

has correctly observed the conduct of the defendant, thereby

closed the right of the defendant, which should not be

reopened as it would amount to encouraging a litigant who

has remained silent for a quite long time.

5.2. Lastly, learned advocate Mr. Tejas would submit that

if this Court grants indulgence in favor of the petitioner, apart

from imposing costs, the Trial Court may be directed to decide

the summons for judgment and the leave to defend application

within the stipulated time, as the suit in question was

instituted in the year 2018, and as such, the plaintiff is

deprived of the fruits of such litigation.

5.3. Making the above submission, learned advocate Mr.

Tejas would request this Court to reject the present

application.

6. Having heard the learned advocates appearing for the

respective parties and after going through the order, prima

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facie, it appears that the Trial Court has taken a very hyper-

technical approach while rejecting the impugned application.

7. It requires to be observed that the summary suit came to

be filed in the month of March, 2018, the defendant appeared

on 02.05.2018, and thereafter, the summons for judgment

came to be filed on 25.06.2018. The adjournment applications

submitted on the record of this case indicate that there were

some talks of settlement ongoing between the parties.

8. It is true that such fact is disputed by the plaintiffs, but

they are unable to controvert the fact that such filing of the

adjournment application was duly informed to the learned

advocate of the plaintiff over the phone. Thereafter, on two or

three occasions, on similar lines, the adjournment was sought

for and granted by the Trial Court.

9. It further appears that on 16.08.2018, when the advocate

of the defendant was not present and had not filed any

adjournment application, the right to file leave to defend was

closed by the Trial Court.

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10. It is further noticed by this Court that within no time, on

21.08.2018, the impugned application below Exhibit 15

prepared and came to be filed on 27.09.2018, by the original

defendant, requesting the Trial Court to reopen his right to file

leave to defend and so also, annexed the copy of leave to

defend application demonstrating his bona fides that there was

no ill intention on the part of the defendant to derail the

proceeding.

11. If all these facts are taken into account by this Court, it

would suggest that there is neither negligence nor any mala

fide intention on the part of the defendant to derail the trial of

the suit, inasmuch as summary suit.

12. Time and again, the Hon'ble Supreme Court in its

various decisions has propounded that the rule of procedure is

the handmaid of justice, and a hyper-technical approach

requires to be avoided by the Trial Court while dispensing

with justice.

13. 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)

14. At the same time, it is also required to be observed that

to some extent, the defendant would be responsible for the

delay in the adjudication of the summons for judgment/leave

to defend, and because of his fault, the respondent/plaintiff is

required to travel up to this Court.

15. Having so noticed hereinabove that the right of the

defendant to file leave to defend requires to be protected; at

the same time, the interest of the plaintiff also requires to be

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taken note of by this Court. So, the petitioner is required to

pay a sum of Rs.15,000/- as costs to the plaintiff as a

condition to file leave to defend in the suit. In view of the

aforesaid, I pass the following order:-

15.1. The upshot of the aforesaid observations, discussions,

and reasons is that the impugned order dated 29.11.2018,

passed by the City Civil Court No.19 of Ahmedabad city below

Exhibit 15 in Summary Suit No.545 of 2018, is hereby quashed

and set aside.

15.2. The impugned application filed below Exhibit 15 in

aforesaid suit, is allowed on the condition that the petitioner

shall pay a sum of Rs.15,000/- within a period of two weeks

from today to the respondent/plaintiff.

15.3. Once, such cost is paid to the plaintiff by the

defendant, the leave to defend submitted by the petitioner /

defendant shall be taken on record and given an exhibit.

15.4. Thereafter, after giving a reasonable opportunity of

hearing to the plaintiff as well as the defendant, the Trial

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Court shall decide the summons for judgment and leave to

defend in accordance with law as early as possible, preferably

on or before 29.11.2025.