Gujarat High Court
Nanubhai Maganbhai Ghoghari Since ... vs Vaniben Dahyabhai Chauhan on 18 March, 2025
NEUTRAL CITATION
C/SCA/22134/2022 ORDER DATED: 18/03/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22134 of 2022
==========================================================
NANUBHAI MAGANBHAI GHOGHARI SINCE DECD. THROUGH LHS &
ORS.
Versus
VANIBEN DAHYABHAI CHAUHAN & ANR.
==========================================================
Appearance:
G K VAGHANI(7830) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,2,2.1,2.2,2.3,2.4,2.5
MR. P. D. TAILOR(8815) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,2,2.1,2.2,2.3,2.4,2.5
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/03/2025
ORAL ORDER
1. Heard learned advocate Mr. G.K. Vaghani for the petitioners and learned advocate Mr. Hari Brahmbhatt for learned advocate Mr. Dhaval M. Barot for the respondents.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs :-
"(a) To admit this petition and to allow the same;
(b) To quash and set aside the impugned order dated 22.08.2022 passed by the Ld. 18th Additional Senior Civil Judge, Surat below application at Ex. 142 in Regular Civil Suit No. 218 of 2002; and consequently be pleased to re-open the right of the evidence for the purpose of cross-examination;Page 1 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025
NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined
(c) Pending admission and final disposal of the present petition be pleased to stay further proceedings of Special Civil Suit No.218 of 2022 pending in the court of Ld. 18th Additional Senior Civil Judge, Surat.
(d) To grant any other appropriate and just relief/s."
Facts of the case
3. The petitioners are original defendants of Regular Civil Suit No. 218 of 2002 filed by the respondents herein.
3.1 The present petitioners after tendering affidavit in lieu of examination-in-chief filed below Exh. 83 were not remain present for cross examination, thereby right of petitioners was closed vide order dated 20.12.2021.
3.2 The petitioners appears to have filed impugned application below Exh. 142, thereby requested the trial Court to re-open the right of defendants to lead oral evidence. The respondents strongly objected the impugned application.
3.3 After hearing the parties, the trial Court vide its impugned order dated 22.08.2022 has rejected the impugned application.
3.4 Feeling aggrieved and dissatisfied with the impugned order, the petitioners have preferred the present writ Page 2 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined application.
4. Learned advocate Mr. G.K. Vaghani for the petitioners - defendants respectfully submits that the defendants have tendered the affidavit in lieu of examination-in-chief prior to Covid-19 situation but due to Covid-19, cross examination of defendants was not possible and the matter was adjourned from time to time.
4.1 Learned advocate for the petitioners would fairly submit that prior to 20.12.2021, sufficient opportunity were given to the petitioners- defendants to remain present for cross examination but due to various reasons which were assigned in the adjournment applications, the petitioners would not remain present for cross examination. He would further submit that if the right of the petitioners will not be re-opened to lead their evidence, it would be fatal blow as in absence of any oral evidence of defendants, if suit gets decide, it will cause serious prejudice to the defendants.
4.2 Learned advocate for the petitioners would submit that the trial Court has taken hyper technical approach and also placed wrong reliance on the decision of the Hon'ble Apex Court in the case of K.K. Velusamy Vs. N. Palaanisamy reported in 2011 (11) SCC 275 which is not at all applicable Page 3 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined to the facts of the present case.
4.3 Learned advocate Mr. Vaghani for the petitioners would further submit that by imposing costs upon the petitioners, the right of the petitioners to lead oral evidence could have been re-opened by the trial Court.
4.4 Making the above submissions, learned advocate Mr. Vaghani for the petitioners requests this Court to allow the present writ application.
5.1 Per contra, learned advocate Mr. Hari Bhrambhatt for learned advocate Mr. Dhaval Barot for the respondents have vehemently objected the present writ application. Learned advocate for the respondents has drawn the attention of this Court and emphasized on the observations made by the trial Court in Para-6 of its impugned order.
5.2 Learned advocate for the respondents would further submit that considering the past conduct of the original defendants, no leniency be shown in favour of the defendants and as such there is no error committed by the trial Court while rejecting the impugned application. He would further submit that despite granting several opportunities, the defendants have failed to avail and never Page 4 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined remained present for cross examination which ultimately derailed the trial of the suit, which was filed in the year 2002.
5.3 Learned advocate Mr. Brahmbhatt for the respondents would further submit that considering the facts and circumstances of the case and past conduct of the defendants, no relief as prayed for by the petitioners may be granted.
5.4 Lastly, learned advocate for the respondents would submit that if this Court is inclined to accept the prayer made by the petitioners, an exemplary cost to be imposed, thereby such default may not be committed by the petitioners in future.
5.5 Making the above submission, learned advocate for the respondents request this Court to dismiss the present writ application.
6. The point which fall for consideration of this Court is about whether in facts and circumstance of the case, it would be appropriate to reopen the right of defendants to lead oral evidence which is so closed by the trial court?
6.1 It is true that sufficient opportunities were granted to Page 5 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined the petitioners- original defendants to appear for cross examination. At the same time, one can not oblivious of the fact that in Covid-19 period, the normal life of the citizens are severally affected.
6.2 It is true that during such period of Covid-19 situation also the Court was functioning, albeit in online mode until resumed physically. It appears from the impugned order that sufficient opportunities were given to the defendants to appear for cross examination but due to any reason, same was not availed. At the same time, the trial Court was also accepting the prayer of defendants while granting adjournment in favour of the defendants.
7. The trial Court has relied upon the decision of the Hon'ble Apex Court in the case K.K. Velusamy (supra) is not at all applicable in the facts of the present case, as the case on hand, is not recalling of witnesses but right of defendants to be reopened thereby allow them to lead their evidence and to examine witnesses on their behalf as the case may be.
8. It is a well-settled legal position that the rule of procedure is a handmaid of justice, and a hyper-technical approach requires to be avoided by the Trial Court. It is profitable to rely upon recent past decision of Hon'ble Apex Page 6 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined 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....."
9. It is expected from trial court that the principles of natural justice be observed while deciding any request made by a party, ensuring that no serious prejudice would cause to party when such a prayer made by party turns down.
10. Even the Trial Court itself can impose stricter conditions and impose heavy costs upon the defaulting party/applicant if found negligent in his actions while participating in the trial of the suit but as far as possible, it should not foreclose right of litigation forever which seriously cause prejudice to their interest. At the same time, if litigant is not taking process of law seriously and try to Page 7 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined cause delay the trial, by imposing heavy cost upon such litigant and put to strictest terms, trial court requires to proceed with trial. Ultimately, rule of procedure is meant for dispensation of justice and not made to take away right of litigant to defend action, albeit within limits of law.
11. In any case, when request made by defendant to reopen their stage to lead oral evidence on appropriate terms, trial Court was requires to consider such request and could have granted one last opportunity to defendants by imposing cost and strictest terms but it could not have turn down such request by rejecting impugned application.
12. To that extent, the impugned order requires interference, as it has been passed contrary to the rule of procedure and against settled legal position of law and to that extent its bad in law.
13. It is also well settled law that High Court should sparingly exercise its power under Article 227 of the Constitution of India only in appropriate cases in order to keep the subordinate courts within the bounds of their authority [Waryam Singh v/s Amarnath - AIR 1954 SC 215]. Having arrived at the aforesaid conclusion and having found that trial Court has committed procedural irregularity which Page 8 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India thereby, an interference requires in the impugned order.
14. Considering the aforesaid decisions of the Hon'ble Apex Court, I am of the view that one last opportunity requires to be given to the defendants thereby defendants can complete their oral evidence. At the same time, considering the conduct of the defendants, the cost is required to be imposed upon the defendants as due to their fault, the trial could not be completed as the suit is of the year 2002.
15. The upshot of the aforesaid discussion, observations, and reasons, I am of the view the impugned order requires to be quashed and set aside.
16. The impugned application filed by defendants below Ex. 142 is hereby allowed on condition that petitioners- defendants will pay the cost of Rs. 15,000/- to the original petitioners and additionally deposit the amount of Rs. 5,000/- to DSLA, Surat within a period of one week from the date of receipt of this order.
17. On depositing the receipt of costs, the trial Court is Page 9 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025 NEUTRAL CITATION C/SCA/22134/2022 ORDER DATED: 18/03/2025 undefined hereby directed to re-open the right of defendants to lead their oral evidence.
17.1 The defendants are hereby directed to remain present before the trial Court for cross examination which is fixed for hearing of the suit on 05.04.2025 and the plaintiff is also hereby directed to cross examine the defendants and their witnesses accordingly.
17.2 As the suit is of the year 2002, once the oral evidence of the parties will be over, the parties shall give their full co- operation to the trial Court thereby it can be heard and decided the lis between the parties at the earliest.
18. In view of the aforesaid observation and direction, the present writ application is partly allowed. The impugned order dated 22.08.2022 passed by the 18 th Additional Senior Civil Judge, Surat below application at Ex. 142 in Regular Civil Suit No. 218 of 2002 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
(MAULIK J.SHELAT,J) SALIM/ Page 10 of 10 Uploaded by SALIM(HC01108) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 23:02:09 IST 2025