Gujarat High Court
Bhikhabhai Chotabhai Chauhan vs Lalitaben Bhailalbhai Rajput on 16 April, 2025
NEUTRAL CITATION
C/SCA/14303/2024 ORDER DATED: 16/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14303 of 2024
==========================================================
BHIKHABHAI CHOTABHAI CHAUHAN & ANR.
Versus
LALITABEN BHAILALBHAI RAJPUT & ORS.
==========================================================
Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1,2
MR MANTHAN K BHATT(6549) for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/04/2025
ORAL ORDER
1. Rule. Learned advocate Mr. Manthan K. Bhatt waives service of notice of rule on behalf of contesting respondent No.6.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/ certiorari or a writ in the nature of mandamus/certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated 16.05.2024 below Exh.12 in CMA No.46/2018 passed by the 23rd Add. Senior Civil Judge Vadodara (ANNEXURE-G) and to allow the said application below Exh.12 in CMA No.46/2018 filed before the 23rd Add. Senior Civil Judge Vadodara, in the interest of justice;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the implementation of Page 1 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined order dated 16.05.2024 below Exh.12 in CMA No.46/2018 passed by the 23rd Add. Senior Civil Judge Vadodara (ANNEXURE-G) and further be pleased to direct the opponents herein to maintain status quo over the suit property;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;
3. Heard learned advocate Mr. Jamshed Kavina for the petitioner and learned advocate Mr. Manthan Bhatt for contesting respondent No.6. The presence of other respondents are not required. As far as possible hereinafter, parties will be referred as per their original position in suit.
Short Facts of the case.
4. The petitioners are original plaintiffs of Special Civil Suit No. 45 of 2009 filed against the respondents. It appears that during the pendency of the suit, it got dismissed for default, whereby, plaintiffs have chosen to file restoration application being CMA No. 46 of 2018 under Order IX rule 9 of CPC as there was delay in filing such application. The trial Court vide its order dated 18.08.2021 has condoned such delay by imposing cost of Rs. 2,000/- to be deposited by the plaintiffs with DLSA, Vadodara.
4.1 It further appears that due to reason cited in the Page 2 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined impugned application, the plaintiffs could not deposit such amount of cost within reasonable time albeit, no time was fixed by the trial Court to deposit such amount of cost.
4.2 Nonetheless, the plaintiffs appear to have filed the impugned application below Exh. 12 in CMA No. 46 of 2018, whereby, requested the trial Court to allow them to deposit the amount of cost by condoning delay in deposit. The trial Court vide its order dated 16.05.2024 has rejected such application, which is impugned in the present writ application.
Submission of the petitioners-plaintiffs 5.0 Learned advocate Mr. Jamshed Kavina for the petitioners would submit that as such there is delay of 220 days in depositing the amount of cost of Rs. 2,000/-, so imposed by the trial Court vide its order dated 18.08.2021 and reasons are assigned by the plaintiffs of not depositing such cost, is not considered by the trial Court. He would further submit that the plaintiff is paralytic and undergoing rigorous medical treatment unable to move and in-fact with the help of others, he was personally remain present before the trial Court, which is so stated in the impugned application. The necessary medical certificate/evidence is Page 3 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined placed before this Court with writ application.
5.1 Leaned advocate Mr. Kavina would further submit that at the relevant point of time, due to the aforesaid reasons and medical exigency, the plaintiffs could not be able to contact their Lawyer and unable to deposit the amount of cost, otherwise, the plaintiffs have no intention not to honor the order of the trial Court. He would further submit that as such it is a procedural order wherein the trial Court require to have liberal approach and to avoid hyper technical approach, thereby, it can advance substantial justice to the parties.
5.2 Making the above submissions, learned advocate Mr. Kavina would request this Court to allow the present writ application.
Submission of respondent No.6
6. Learned advocate Mr. Manthan Bhatt for respondent No.6 would submit that there is no merit in the impugned application as well as in the present writ application, which is required to be dismissed by this Court. He would further submit that the plaintiffs have not submitted better particulars and no medical evidence were available on record Page 4 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined with the trial Court in support of their application, which is now submitted before this Court, which may not be looked into by this Court.
6.1 Learned advocate Mr. Bhatt would further submit that the suit was filed in the year 2009 and it was not progressed due to laxity on the part of the plaintiffs and due to such reasons, the suit got dismissed for default and respondent No.6 has to suffer due to pendency of the suit proceedings. He would further submit that as such there is no error committed by the trial Court while rejecting the impugned application filed below Exh. 12 and this Court may not show any leniency towards plaintiffs who are not remained vigilant and active during the course of trial of the suit.
6.2 Making the above submission, learned advocate Mr. Bhatt would request this Court to dismiss the present writ application.
7. No other and further submissions have been made by the learned advocates for the respective parties.
ANALYSIS
8. The short controversy which arise and requires to be Page 5 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined adjudicated by this Court as to whether the order impugned in the present writ application, thereby, prayer made by the petitioners to deposit the cost is correctly rejected by the trial Court or not?
9. The facts are not much in dispute so not discussed herein again. It appears that the trial Court vide its order dated 18.08.2021 has condoned the delay in filing restoration application filed by the original plaintiffs under Order IX rule 9 of CPC by imposing the cost of Rs. 2,000/- upon them.
9.1 The said order would not indicate any time limit, in which plaintiffs have to deposit the amount of cost. Be that as it may, plaintiffs vide their application filed below Exh. 12 requested the trial Court that due to serious illness and plaintiff is suffering from paralysis, the amount of cost could not be deposited within reasonable time, thereby, by way of filing impugned application requested the trial Court to accept the amount of cost, which is not entertained by the trial Court.
9.2 As such, the order of imposing cost is a discretion available with the trial Court which was correctly exercised by the trial Court while condoning the delay vide its order Page 6 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined dated 18.08.2021. When there is no time limit is fixed by the trial Court, directing the applicants to deposit the amount of cost, it would be a procedural aspect which can be considered by the trial Court when the applicants are coming out with a cause, which prima-facie appears reasonable which prevented the applicants, thereby, enable to deposit the cost within reasonable time.
9.3 The ground so set out in the impugned application, appears reasonable to this Court which ultimately prevented the plaintiffs thereby, unable them to deposit the amount of cost of Rs. 2,000/- with the trial Court within reasonable time after passing its order dated 18.08.2021.
9.4 It further appears that the trial Court has taken very hyper technical approach by passing the impugned which could have been avoided.
10. It is apt to refer and rely upon the full bench decision of Honourable Apex Court in a case of Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr reported in (2006) 1 SCC 75, wherein it has been so held thus, Page 7 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined "17.Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :-
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;"
(emphasis supplied) 10.1 So, by now, 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 also profitable to rely upon recent past decision of Hon'ble Apex Court in a case of Sugandhi (Dead) by Lrs. and another Vs. Rajkumar Rep. By his Power Agent Imam Oli reported in (2020) 10 SCC 706 wherein held as under :-Page 8 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025
NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined "[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)
11. 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].
12. Having arrived at the aforesaid conclusion and having found that trial Court has committed procedural irregularity which 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. Thus, the impugned order requires to be interfered by this Court while exercising its power under Article 227 of the Constitution of India. So, in view of the aforesaid facts and the ratio laid down by the Hon'ble Apex Court in the case of Uday Shankar Triyar (supra), Sugandhi Page 9 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025 NEUTRAL CITATION C/SCA/14303/2024 ORDER DATED: 16/04/2025 undefined (Dead) by Lrs. (supra), and Waryam Singh (supra), I am of the view that the plaintiffs could have been allowed by the trial Court to deposit the amount of Rs. 2,000/- by allowing their impugned application filed below Exh. 12 as its not only procedure aspect but no serious prejudice caused to defendants.
13. Thus, in view of aforesaid, the present writ petition is hereby allowed. The impugned order dated 16.05.2024 passed by 23rd Add. Senior Civil Judge Vadodara below Exh.12 in CMA No.46/2018 is hereby quashed and set aside. Consequently, the impugned application filed by the plaintiffs below Exh. 12 is hereby allowed, thereby, the plaintiffs are permitted to deposit the amount of cost of Rs. 2,000/- with the DLSA, Vododara within a period of ten days from date of receipt of copy of this order.
14. Rule is made absolute to the aforesaid extent. No order further costs.
(MAULIK J.SHELAT,J) SALIM/ Page 10 of 10 Uploaded by SALIM(HC01108) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:26 IST 2025