Gujarat High Court
Dineshbhai Mafatlal Chaudhary vs Legal Heirs Of Deceased Chandmal ... on 18 December, 2023
NEUTRAL CITATION
C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5217 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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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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DINESHBHAI MAFATLAL CHAUDHARY
Versus
LEGAL HEIRS OF DECEASED CHANDMAL DHANRAJ SHAH
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/12/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Ashish H. Shah waives service of notice of Rule for respondents.
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2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.
3. Heard learned advocates for the respective parties.
Perused the record.
4. In this petition, the prayers sought for by the petitioner are to quash and set aside the order passed by the learned City Civil Court, Ahmedabad dated 18/08/2017 in Civil Miscellaneous Application No.239 of 2016 for condonation of delay in restoration of order dated 23/03/2010 which is at Annexure `A' to this petition and further prayed that the learned City Civil Court, Ahmedabad may be directed to decide the restoration application against the order dated 23/03/2010 on merits after hearing the present petitioner and also prayed that pending admission and final disposal of the present petition this Court may be pleased to stay Page 2 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined execution and implementation of the order passed by the learned City Civil Court, Ahmedabad dated 18/08/2017 in Civil Miscellaneous Application No.239 of 2016.
5. The submission of the learned advocate for the petitioner is that Mr. Chandmal Dhanraj Shah - original respondent filed a summary suit before the learned City Civil Court, Ahmedabad being Summary Suit No.3138 of 2001 for the recovery of Rs.1,18,000/-. Thereafter, the said suit came to be transferred to learned Small Cause Court, Ahmedabad by order dated 31/12/2002 and it was renumbered as Summary Civil Suit No.4976 of 2003. The learned trial Court passed an ex-parte decree and the defendant i.e. the present petitioner was directed to pay Rs.1,18,000/- with interest at the rate of 11% per annum on 31/03/2010. Against which, the present petitioner preferred a restoration application being Civil Page 3 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined Miscellaneous Application No.142 of 2014 before the learned Small Cause Court, Ahmedabad whereby a prayer for restoration of the suit was prayed for. The said application came to be dismissed by the learned Small Cause Court on 01/02/2016. Thereafter, the present petitioner preferred Civil Miscellaneous Application No.239 of 2016 before the learned City Civil Court, Ahmedabad challenging the said order dated 31/03/2010 and prayed for condonation of delay of 4 years and 2 months in preferring the restoration application. However, said application came to be rejected by the learned City Civil Court on 18/08/2017. Against which, being aggrieved by the same order the petitioner has preferred this petition.
6. The submission of learned advocate for the petitioner is that decree passed on 31/03/2010 in Summary Civil Suit No.4976 of 2003 by the learned Page 4 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined Small Cause Court, Ahmedabad is ex-facie, illegal since the same is ex-parte order and no opportunity was given to the defendant - petitioner to defend the suit. He has placed reliance upon following grounds mentioned in the present petition, more particularly, Paragraph Nos.4(c) & 4(e) which read as under:
"4(c) The petitioner submits that the present petitioner having the specific case that the present petitioner was no aware with the fact that Dhiraj. U. Panchal, Advocate work with the Rajan. K. Modi, Advocate and advocate Modi had also not provided the summons for the judgment and therefore leave to defense cannot be submitted, moreover in a year 2007 8 present petitioner met with an accident and present petitioner had to go out of station frequently and therefore also petitioner could not get the information from the advocate and therefore lack of information from the advocate on record the ex-party order was passed. Therefore, there is no fault or negligence on the part of the present Page 5 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined petitioner.
4(e) It is submitted that, the present petitioner having good case on merits and ex-party order is passed in the regular Civil suit and also petitioner could not file the leave to defense and on execution on decree petitioner get the information regards to the decree and therefore also learned court below may not have taken such hyper technical view in the case of present petitioner for the condonation of delay in restoration application against the ex-party decree."
7. After the Restoration Application No.142 of 2014 came to be dismissed by the learned Small Cause Court on 01/02/2016, another Restoration Application being Civil Miscellaneous Application No.239 of 2016 came to be filed before the learned City Civil Court for the same reliefs which were sought for before the learned Small Cause Court, Ahmedabad.
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8. It is further submitted by the learned advocate for the petitioner that when the suit was originally filed before the learned City Civil Court being Summary Suit No.313 of 2001 came to be transferred to the learned Small Cause Court, no notice was served upon the petitioner and the petitioner was not aware about the transfer of the said summary suit and whereby it is submitted that this being a special circumstance for not appearing in the summary suit No.4976 of 2003.
9. It is also submitted by the learned advocate for the petitioner that the knowledge of decree came to the petitioner when the notice of Execution Petition No.48 of 2013 was served to the petitioner.
10. Per contra, the learned advocate for the respondent has forcefully submitted that the conduct of the present petitioner is abuse of process of law, in as much as the Civil Page 7 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined Miscellaneous Application No.142 of 2014 which was filed before the learned small cause court for the restoration of Summary Civil Suit No.4976 of 2003 came to be dismissed on 01/02/2016. It is also submitted that the prayers in the said restoration application was only to open the stage of defense and there was no prayer for setting aside the judgment and decree dated 31/03/2010. The learned trial Court has rightly rejected the application by observing that any order passed under the summary proceedings, the remedies under Order 37 Rule 4 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as 'the Code'), whereby, the petitioner is required to show special circumstance to set aside the decree. It is submitted that in the application of restoration of the suit, the petitioner has not shown any special circumstance and the reasons which are averred in the application are without any substance and one after the another application for Page 8 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined restoration is filed just to delay the execution proceeding which is filed by the original plaintiff being Execution Petition No.48 of 2013.
11. The learned advocate for the respondent has placed reliance upon the following decisions:
(a) Santoshi T.V. Centre v. Arvind Mills Limited Ahmedabad reported in 1997(0) GLHEL-HC 210899 (Para no.3 is pressed into service) &
(b) Estate Officer, Haryana Urban Development Authority and Another v.
Gopi Chand Atreja (2019) 4 SCC 612 (Para Nos.12, 13 are pressed into service)
12. After considering the submissions and on perusal of the record, the admitted fact is that the decree was passed by the learned Small Cause Court in Summary Civil Suit No.4976 of 2003 was challenged by defendant by way of Civil Page 9 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined Miscellaneous Application No.142 of 2014 and the same came to be dismissed by learned Small Cause Court on 01/02/2016. Thereafter, once again the defendant challenged the judgment and decree passed in Summary Civil Suit No.4976 of 2003 before the learned City Civil Court, Ahmedabad by filing Civil Misc. Application No.239 of 2016, wherein also, the same reasons were assigned. The learned Small Cause Court while dismissing the Civil Misc. Application No.142 of 2014 has referred and relied upon Section 38 of the Presidency Small Cause Courts Act, 1882. The said provision is reproduced hereunder:
"38. New trial of contested cases.--
Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit [not being a decree passed under section 522 of the Code of Civil Procedure (14 of 1882)], order a new trial to be held, or alter, set aside or reverse Page 10 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
Explanation.--
Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant."
13. The remedy available to the party who is aggrieved by the judgment and decree is by way of a new Trial application before the learned bench of Small Causes Court, Ahmedabad. Though there is an explicit provision under the said Act, the petitioner did not avail that remedy and filed Restoration Application. Under the above circumstances, learned Small Cause Court has rightly rejected the application for want of jurisdiction. However, just to misuse the process of law and with a clear intention to delay the execution proceedings, the Page 11 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined petitioner filed Civil Misc. Application No.239 of 2016 before the learned City Civil Court, Ahmedabad challenging the judgment and decree passed in Summary Civil Suit No.4976 of 2003. It is surprising that in the application, the petitioner has averred that the learned Small Cause Court directed the present petitioner to file appropriate application before the proper jurisdiction. This averment is nothing but an attempt to misguide the learned trial Court as the learned Small Cause Court while rejecting the application on 1.2.2016 has not directed the petitioner to file appropriate proceedings before the appropriate jurisdiction but simply rejected the application for want of proper jurisdiction.
14. The learned City Civil & Sessions Judge while rejecting the application on 18.8.2017 has considered the period of delay which is gross in the present set of facts. The period of 4 years and 2 Page 12 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined months in challenging the decree is not a condonable period in absence of establishing and showing special circumstance. In the present case, there are no special circumstances which prevented the defendant - petitioner to defend the suit. Even otherwise, the judgment and decree passed by the learned Small Cause Court, Ahmedabad cannot be challenged before the learned City Civil & Sessions Court, Ahmedabad. The petitioner has misused the process of law. This Court has taken serious note of this. The parties cannot be allowed to file proceedings at their whims and the Advocates, who are officers of the Court are supposed to guide litigants to serve the purpose of justice. It is shocking and painful to observe that how a judgment and decree passed by the learned Small Cause Court can be challenged before the learned City Civil & Sessions Court, Ahmedabad.
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15. Applying the decision of Santoshi T.V. Centre (Supra), there is a distinction between `special circumstance' and `sufficient cause'. The Coordinate Bench of this Court has distinguished the said two words in clear terms.
16. The scope under Article 227 of the Constitution of India is very limited and this Court can only interfere in the order impugned if the same is de hors the provisions of law and there is patent illegality and arbitrariness in arriving at the conclusion.
17. In the totality of the facts, this Court is of the view that there is no infirmity or illegality in the order impugned since the observations made thereunder are purely on facts. Hence, this petition cannot be entertained and the same deserves to be dismissed and accordingly, it is dismissed with cost of Rs.5,000/- (Rupees five thousand only). The Page 14 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/5217/2018 JUDGMENT DATED: 18/12/2023 undefined amount of cost shall be deposited by the petitioner before the City & District Library, Ahmedabad City Civil & Sessions Court, Bhadra, Ahmedabad within a period of fifteen days from the date of receipt of copy of this judgment.
18. The Registry is directed to send copy of this Judgment to the Registrar, City Civil & Sessions Court, Ahmedabad and the Registrar shall place copy of this Judgment in the Execution Petition No.48 of 2013.
19. Rule is discharged.
(D. M. DESAI,J) VATSAL Page 15 of 15 Downloaded on : Wed Dec 20 20:40:18 IST 2023