Gujarat High Court
Chandubhai @ Amarsang Bhayabhai vs Rasiklal Manilal Kherdiya (Darji) on 14 October, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/12717/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12717 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CHANDUBHAI @ AMARSANG BHAYABHAI....Petitioner(s)
Versus
RASIKLAL MANILAL KHERDIYA (DARJI)....Respondent(s)
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Appearance:
MR JIGNESH L HAJARE, ADVOCATE for the Petitioner(s) No. 1
MR VAJUBHAI D THORIA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 14/10/2015
CAV JUDGMENT
1. Rule. Learned advocate Mr. V. D. Thoria waives service of Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Oct 15 03:01:38 IST 2015 C/SCA/12717/2012 CAV JUDGMENT notice of rule on behalf of respondent.
2. Petitioner is original defendant, whereas respondent is original plaintiff before the Court of Senior Civil Judge, Rajkot in Regular Civil Suit No. 354 of 2009. Plaintiff has filed a suit for declaration and possession of the suit property claiming that though he is owner, defendant has trespassed and occupied the suit property illegally. In such suit, defendant - petitioner could not file reply in time and, therefore, by an application at exhibit 29, defendant has prayed to open his right to file a written statement and to accept the written statement presented by him on record. Copy of written statement is annexed at annexure B to this petition from page 22 to 25. Though contents of such written statement is to be considered only after it has been accepted on record, the fact remains that petitioner has categorically pleaded in such petition as well as in such statement that defendant himself has preferred a Regular Civil Suit No. 106 of 2005 and that he is in possession of the suit property since last 30 years. It is also contended that in fact, even plaintiff has also disclosed the pendency of many litigations being Civil Suit No. 105 of 2005, Civil Appeal No. 15 of 2006 and Special Civil Application No. 6063 of 2007. Thereby it is contended that, in view of such facts and circumstances when civil litigations are pending between the parties, defendant would not fail to defend such suit by not filing written statement. However, since the advocate for the petitioner - defendant has filed a formal application to accept the written statement on record, at belated stage, probably without assigning good reasons and, therefore, trial Court has by impugned order dated 12.07.2012 below exhibit 29 rejected such request contending that defendant has deliberately not filed the written statement and that when defendant has lost the previous suit, now he has no defence in this suit and, therefore, written statement cannot be accepted. It is also contended that Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Oct 15 03:01:38 IST 2015 C/SCA/12717/2012 CAV JUDGMENT there is no explanation as to why there is delay in filing written statement and, therefore, relying upon the judgment reported in AIR 2012 Jharkhand page-8 between Manoj Mahto and Kaleshwar Mahato, the trial Court has considered that this is a delaying tactic of defendant and, therefore, refused to accept the written statement.
3. The recent judgment of Hon'ble the Supreme Court of India in the case of Banwari Lal and another Vs. Balbir Singh in Civil Appeal No. 6567 of 2015 also confirms that procedural law is not meant to defeat the cause of justice. The relevant portion of para Nos. 10 and 11 reads as under:
10. Provisions of Order XXII CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra Vs. Pramod Gupta (2003) 3 SCC 272, a Five Judge Bench of this Court held as under:-
26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Oct 15 03:01:38 IST 2015 C/SCA/12717/2012 CAV JUDGMENT progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs.
Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Oct 15 03:01:38 IST 2015 C/SCA/12717/2012 CAV JUDGMENT conformity with the avowed object of the Court to do real, effective and substantial justice.... (Underlining added)
11. In Sital Prasad Saxena(D) by Lrs. V. Union of India and Ors., (1985) 1 SCC 163, it was observed that the rules of procedure under Order XXII CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained."
4. Petitioner is also relying upon the decision in case of Sandeep Thapar vs. SME Technologies Private Limited reported in 2014 AIR (SCW) 431 by the full bench of the Honourable Supreme Court, wherein it is held that rejection of application for accepting written statement after prescribed period of limitation, is not justified and thereby defendant was allowed to file written statement but with an order of payment of cost of Rs.50,000/-. Honourable Supreme Court has discussed the relevant provisions and deemed it fit to allow the defendant to submit written statement with such heavy cost because dispute involved between the parties is to the tune of Rs.40,00,000/-. Whereas in the present case, the dispute is pertaining to possession of land. Therefore, it would be appropriate to permit the petitioner - defendant to file the written statement on payment of cost of Rs.5000/-.
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5. Therefore, this petition is allowed. Thereby impugned order dated 12.07.2012 below application at exhibit 29 in Regular Civil Suit No. 354 of 2009 is quashed and set aside on condition that petitioner shall pay Rs.5000/- towards cost before the trial Court within 4 weeks. On depositing such amount, the trial Court shall accept the written statement on record. Rule is made absolute accordingly.
(S.G.SHAH, J.) drashti Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Oct 15 03:01:38 IST 2015