Gujarat High Court
Seemaben Tulsibhai Khatri vs Vyomesh M Shah on 25 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/13138/2014 ORDER DATED: 25/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13138 of 2014
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SEEMABEN TULSIBHAI KHATRI
Versus
VYOMESH M SHAH
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Appearance:
MR MA BUKHARI(211) for the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MR AMIT SOLIYA FOR MR.JAY S SHAH(7244) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 25/10/2021
ORAL ORDER
The petitioner, who is the original plaintiff in Special Civil Suit No. 29 of 2005, has challenged the judgment and order dated 28.04.2014 passed in Misc. Civil application No. 48 of 2009.
Short facts may be referred as under:
The petitioner approached the respondent for operation of family planning due to pain in stomach on 08.01.2002 and she contacted Dr. R.G. Patel of Dharti Hospital and she came to know that she was pregnant. Other Dr. Vandanaben Amin of 'Multi Maternity Nursing Home' terminated her pregnancy. She made complaint to Dr. Vandanaben Amin on 28 th January 2004, as she had problem in her intestine. On 2 nd April 2004, present petitioner was operated through "Laparoscopy' system Page 1 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 by Dr.Vyomesh Shah but her pain was not reduced. The respondent is having Gynec degree even though he acted as surgeon and removed intestine. The respondent doctor wrongly operated the plaintiff and caused negligent manner, and therefore, plaintiff suffered a lot and filed Special Civil Suit No. 29 of 2005 before the court of learned Principal Senior Civil Judge, Patan for the negligent and wrong act of the respondent. The learned Principal Senior Civil Judge, vide order dated 5th November 2009, partly allowed the suit and passed a decree against the respondent to pay Rs. 25,48,000/-
with 6% interest from the date of the suit. The respondent/defendant filed MCA No. 48 of 2009 under Order 9 Rule 13 of the Code for setting aside the ex-parte decree.
Learned Trial Court, vide order dated 28 th April 2014, set aside the decree with cost of Rs. 25,000/-. The present petitioner has challenged the impugned order passed by the trial Court in MCA No. 48 of 2009 by Misc. Application No.0 of 2014 under Oder 43 Rule 1(d) of CPC with application of delay of 66 days. Learned District Judge, Patan opined that the said appeal is not maintainable. Hence, it was withdrawn on 21.08.2014.
Heard learned advocates for the respective parties.
It was submitted by learned advocate for the petitioner/plaintiff that the trial court has not verified the record of the Special Civil Suit No. 29 of 2005 as the defendant Page 2 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 was duly served with a summons and appeared in the proceedings by filing his written statement vide Exhibit 19 on 6th February 2013. It was further submitted that examination in chief on affidavit was filed by the plaintiff vide Ex. 37 on 8th October 2008 and advocate for the respondent/defendant made cross examination of the plaintiff. That thereafter, case was further adjourned on 20th April 2009, 21st September 2009, 7th October 2009, 11th October 2009 and 20th October 2009 for further cross-examination of the plaintiff, but no cross examination was made by the learned advocate appearing for the respondent/defendant. Hence, closing purshish was filed by the plaintiff on 9th November 2009. That, application Ex. 51 was filed by the plaintiff closing the right of the defendant which was allowed and right of recording evidence of the defendant was closed on 17 th November 2009. That written arguments was produced by the plaintiff vide Ex. 52 on 21st November 2009 and judgment was delivered on 28th April 2014 in Special Civil Suit No. 29 of 1985. It was further submitted that opportunity to cross examine of the plaintiff was given to the defendant and case was adjourned time to time but the defendant failed to cross examine the plaintiff, and therefore, his right was closed for further evidence and ex-parte judgment was passed.
It is further argued that as trial court has committed an Page 3 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 error in allowing application filed under Order 9 Rule 13 of the Code as defendant was given full opportunity to defend his case as the summons was duly served to him in the suit. Hence, it was requested by learned advocate for the petitioner to quash and set aside the impugned judgment and order passed in MCA No. 48 of 2009 dated 28 th April 2014, setting aside the decree passed in Special Civil suit No.29 of 2005.
Learned advocate for the respondent has submitted that no error was committed by the trial court in allowing the application preferred by the respondent under Order 9 Rule 13 of the Code. Referring Order 9 Rule 13 of the Code, it was submitted that if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, it is open for the Court to pass an order setting aside the decree passed against the defendant upon such as to costs, payment into Court or otherwise as it thinks fit. That, cost of Rs. 25,000/- was awarded by the trial court while setting aside the judgment and decree passed in Special Civil Suit No. 29 of 2005. It was further submitted that vide Ex. 37, the issues were framed and plaintiff has filed his affidavit. On 9th July 2008, defendant made cross examination, but it was not over and suit was adjourned till next date at the instance of the trial court. It was further submitted that on 12 th August 2008, plaintiff was not present, and therefore, again the suit Page 4 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 was adjourned on 29th August 2008. On next date of hearing of the suit ie., on 8th October 2008, right of the defendant to cross examine the plaintiff was closed by the trial court. That, the cross examination of the plaintiff was partly carried out by the defendant on 9th July 2008, thereafter, next date was fixed on 17th November 2008. At that time, plaintiff sought time by adjournment application. That, the advocate of the defendant was engaged in a serious case of gang rape being Criminal Case No. 22 of 2008 from 03.03.2009 to 25.08.2009. The District Court building Patan was shifted from old temporary building to the newly constructed campus and therefore, during the said period, defendant was unable to get any date from the records, as the record was not available due to shifting and constant changes of the court. It was submitted that after 25th August 2009, no entry was made in the rojkam, and therefore, defebndant was unaware in respect of new date after 25th August 2009. That, on 21st November 2009, matter was not on board or date of the matter was not fixed. However, the arguments of the plaintiff were taken on record vide Ex. 52 as well as application Exh. 53. The said two documents were not recorded in the rojkam of the court or no endorsement was passed by the defendant to show that a copy is served to the defendant. Thereafter, on next date ie., on 5th December 2009, ex-parte decree was passed against the defendant, and Page 5 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 therefore, MCA No. 48 of 2009 was preferred by the defendant under Order 9 Rule 13 of the Code.
That trial Court has rightly set aside the ex-parte decree passed against the defendant vide order dated 28 th April 2014. It was further submitted that defendant has deposited the said amount of the cost before the trial court, which was withdrawn by the plaintiff. That, thereafter the cross examination of the plaintiff was completed, and thereafter, plaintiff has applied for calling further witnesses and thereafter, this petition is preferred by challenging the impugned order passed in MCA No.48 of 2009. In support of his arguments, learned advocate for the respondent has relied upon the judgment reported in 2019(11) SCC page 301 and requested to dismiss the petition.
Having heard learned advocates for the respective parties and perusing the record, it appears that as per the judgment and decree passed in Special Civil Suit No. 29 of 2005 in para 3 summons was duly served to the original defendant and he appeared before the court by filing his written statement vide Exhibit 13 denying the contentions made by the plaintiff in the suit and other various contentions. The Trial Court has framed issues vide Ex. 15 on 23rd June 2006. Examination in chief on affidavit was filed by the plaintiff vide Ex. 37. From the judgment, it does not appear that any cross examination was Page 6 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 made by the defendant. From the order passed in CMA No. 48 of 2009, it is observed by learned trial court that on 9 th July 2008, cross examination of the plaintiff was made by the defendant. But, for some reasons, further cross examination of the defendant was adjourned by the trial court. Further it appears that on 12th August 2008, plaintiff was not present before the court for further cross examination of the defendant and matter was adjourned again on 29 th August 2008. On 17th November 2008, plaintiff requested to adjourn the matter. Thereafter, for some period, learned advocate appearing for the defendant before the trial court was engaged in Criminal Case No. 22 of 2008. It also appears that District Court, Patan was shifted from old building to newly constructed campus and date of the suit was not available to the defendant. Rojkam of the suit was also silent and there was no entry after 25 th August 2009. On 21st November 2009, as the matter was not listed on board, though written arguments were submitted by the plaintiff vide Ex. 52 and one application Ex. 53. These two documents were also not reflected in the rojkam nor an endorsement was made by the defendant. On 5 th December 2009, exparte order was passed against the defendant. Hence, the defendant approached the trial court by filing MCA No. 48 of 2009 under Order 9 Rule 13 of the Code of Civil Procedure contending that there was sufficient casuse for his failure to Page 7 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 appear before the learned trial court. It appears that learned trial court was pleased to set aside the ex-parte decree passed against the defendant with the cost of Rs. 25,000/- on 28 th April 2014.
Order 9 Rule 13 also provides that if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against the defendant upon such as to costs, payment into Court or otherwise as it thinks fit.
Later on, as per the submissions made by learned advocate for the petitioner, cross examination of the plaintiff is completed by the defendant and plaintiff has also withdrawn the amount of Rs. 25,000/- deposited by the defendant before the trial court. The plaintiff has also applied for calling his witnesses before the trial court, and thereafter, this petition is preferred by the petitioner. These facts are never controverted by the plaintiff before this court.
Hon'ble Apex Court in 2019(11)SCC 3801, has dealt similar issue wherein defendant was served with the summons and had entered his appearance and also filed their written statements. The trial Court, on the basis of the pleadings, framed the issues, examined the plaintiff and defendant made his cross examination. The plaintiff filed his closing purshish and case was posted for recording evidence of the defendant.
Page 8 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022C/SCA/13138/2014 ORDER DATED: 25/10/2021 The defendant did not appear in the suit, and therefore, court proceeded ex-parte against the defendant. There was no cross examination of the plaintiff made by the defendant before the Court and suit was proceeded ex-parte.
Hon'ble Apex Court considering the judgment of B. Janakiramaiah Chetty v. A.K. Parthasarthi, reported in (2003) 5 SCC 641 held that Division Bench was justified in allowing the application filed by the defendant no.1 under Order 9 Rule 13 of the Code Civil Procedure and in consequence, was justifying in setting aside the preliminary decree dated 25 th February 2003 passed in OS No.131 of 1999 treating the said decree as the "ex-parte decree".
From the facts of the present case, the defendant was prevented for further cross-examination of the plaintiff for the reasons as discussed above before the trial court in Special Civil Suit No. 29 of 2005 preferred by the original plaintiff. Rojkam of the suit also supports the contents of the defendant as no certain dates adjourning the suit were shown in the rojmam. Written arguments submitted by the plaintiff Ex. 52 and application Ex. 53 were not disclosed in the rojkam of Special Civil Suit No. 29 of 2005. It is not in dispute that District Court, Patan was shifted to new premises and dates were not available on record. Suddenly, on 21h November 2009, when the matter was not on board or date of the matter Page 9 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022 C/SCA/13138/2014 ORDER DATED: 25/10/2021 was not fixed on that day, written arguments were submitted by the plaintiff, which was taken on record vide Ex. 52 and application was also taken on record vide Ex. 53. The trial court passed an order of next date 5th December 2009. All these aspects are considered by the learned Trial Court while allowing the application preferred by the defendant under Order 9 Rule 13 of the Code.
This Court, considering the acts of record, is of the considered view that there is no illegality or error committed by the trial Court allowing the application ie., CMA No. 48 of 2009 vide order 28th April 2014, hence this petition requires for dismissal and is ordered to be dismissed. Notice stands discharged.
Special Civil Suit No. 29 of 2005 shall be proceeded on merits in accordance with law and dispose of on merits preferably within a period of one year from the date of receipt of this order.
(B.N. KARIA, J) K. S. DARJI Page 10 of 10 Downloaded on : Mon Jan 17 02:21:57 IST 2022