Gujarat High Court
Bhupendrabhai Nagjibhai Jogiyani vs Lakshmanbhai Haribhai on 5 March, 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2714 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
BHUPENDRABHAI NAGJIBHAI JOGIYANI
Versus
LAKSHMANBHAI HARIBHAI & ORS.
==========================================================
Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/03/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Jamshed Kavina for the petitioner.
2. The present application is filed under Article 227 of the
Constitution of India seeking following reliefs :-
“(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 13.02.2025 passed below Exh.38 in
Special Civil Suit No.86 of 2017 by the Additional Senior Civil Judge
Sanand, Ahmedabad (Rural) (ANNEXURE-RR) and further be pleased
to allow application Exh.38 in Special Civil Suit No.86 of 2017 in the
interest of justice;
Page 1 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
(B) During the pendency and final disposal of the present petition,
YOUR LORDSHIPS may be pleased to stay the implementation of the
impugned order dated 13.02.2025 passed below Exh.38 in Special
Civil Suit No.86 of 2017 by the Additional Senior Civil Judge Sanand,
Ahmedabad (Rural) (ANNEXURE-RR) and further be pleased to stay
the proceedings of Special Civil Suit No.86 of 2017 pending before the
Additional Senior Civil Judge Sanand, Ahmedabad (Rural);
(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. The parties will be referred as far as possible as per
their original position in the suit.
Short facts of the case.
4. The respondent Nos. 1 to 3 are the original plaintiff of
Special Civil Suit No. 380 of 2009 filed before the Principal
Senior Civil Judge, Ahmedabad (Rural).The petitioner herein
is the original defendant No.13 of the said suit.
4.1 The suit is filed seeking declaration, injunction in
relation to the suit property situated at Village- Sanand,
District : Ahmedabad at Block No. 441 paiki, gunta 1047,
admeasuring 18,218 sq.mtre. (H.R. Sq. Mtr. -1-82-18), the suit
property is non-agricultural land.
4.2 The plaintiffs are challenging the various sale-deeds
which are executed between the defendant Nos.13 to 16.
Page 2 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
The notice of suit came to be served upon the defendant
no.13 by the Court Bailiff, albeit received by the wife of the
defendant No.13 on 15.09.2009.
4.3 The defendant No.13 though served chosen not to
appear in the suit, thereby the suit was ordered to be
proceeded ex-parte. It appears that due to administrative
order of this Court and the District Court concerned, the
aforesaid suit came to be transferred to Sanand Court. It
appears from the case status of the said suit available on the
web-site of Civil Court, Ahmedabad, such suit came to be
disposed of and transferred to the aforesaid Court vide its
order dated 28.11.2017.
4.4 It further appears that on transfer of suit in the Civil
Court, Sanand, it has been given new number being Special
Civil Suit No. 86 of 2017. It further appears from the case
status of the aforesaid suit which is pending before the Civil
Court, Sanand that on receipt of the suit the Court
concerned at Sanand, it has issued notice on 16.01.2018 to
the parties. This fact has some relevance which will be
discussed in later part of this judgement.
4.5 The transferee Court i.e Civil Court, Sanand has allowed
injunction application vide its order dated 29.11.2023
Page 3 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
(Annexure-Z) wherein it has been clearly recorded in Para-2
of the said order that notice issued by this Court upon
defendants are served. The defendants No. 15 & 16 are
served through public notice. It has been further observed
that despite service of notice, the defendants have chosen
not to appear and neither filed any written statement
against the plaint nor reply to documentary injunction
application. So, the trial Court has closed right of the
defendant No.13 to submit their written statement and
ordered the suit to proceed ex-parte against him.
4.6 The defendant No.13 for the first time appeared in the
suit through his Advocate on 20th July, 2024 by filing an
application below Exh. 36 contending inter-alia that he was
not served with any notice and not given reasonable
opportunity to defend the suit. Such application came to be
rejected by the trial Court, Sanand vide its order dated
20.07.2024.
4.7 Thereafter, the defendant No.13 had filed the impugned
application below Exh. 38 thereby, requested trial Court to
set aside the ex-parte order and further prayed to re-open
the right of defendant no.13 to file written statement as
well as to cross examine the plaintiffs. The impugned
application came to be filed at the stage of where suit is
Page 4 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
reached to the stage of judgement.
4.8 After hearing the parties, the trial Court vide its order
dated 13.02.2025 rejected the impugned application with
costs.
4.9 Being aggrieved and dissatisfied with the impugned
order dated 13.02.2025 passed below Exh.38 in Special Civil
Suit No.86 of 2017 by the Additional Senior Civil Judge
Sanand, Ahmedabad (Rural), the present application is filed.
Submission of the petitioner-defendant No.13
5.0 Learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Jamshed Kavina for the petitioner would
submit that the impugned order is passed contrary to the
provisions of law and requires to be interfered by this Court.
5.1 Learned advocate Mr. Majmudar for the petitioner
would submit that there is no wrong statement made by the
defendant No.13 in the impugned application as observed by
the trial Court in its impugned order. He would further
submit that the defendant No.13 was in fact not served with
notice in person but actually his wife had received notice
which is not in-consonance with the provisions of Order 5
Page 5 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
rule 15 of CPC.
5.2 Learned advocate Mr. Majmudar for the petitioner
would further submit that defendant No.13 was not aware
about the pendency of the subject suit, when his lawyer
came to know about the pendency of such suit, the
defendant No. 13 has immediately rushed to the Court and
filed the impugned application.
5.3 Learned advocate Mr. Majmudar for the petitioner
would further submit that the petitioner has also preferred
cross suit being Special Civil Suit No. 45 of 2018 (old Special
Civil Suit No. 171 of 2008), which is also pending before the
same Court i.e. Additional Senior Civil Judge, Sanand,
Ahmedabad (Rural), whereby there was no reason for
defendant No.13 not to appear in the subject suit. He would
further submit that bailiff of trial Court who had served
notice upon the wife of defendant No.13 has not observed
that within reasonable time, there was no likelihood of
defendant No.13 to return back to his home which is
envisaged under Order V rule 15 of CPC.
5.4 Learned advocate Mr. Majmudar for the petitioner
would further submit that when the defendant No.13 was
not available at his home, the bailiff ought to have recorded
Page 6 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
in his report that there is no likelihood of the defendant
No.13 being found at the residence within reasonable time
then after, it could have served notice upon defendant
No.13.
5.5 Learned advocate Mr. Majmudar for the petitioner
would further submit that receipt upon defendant No.13 is
defective service, thereby the impugned application requires
to be allowed. He would further submit that merely because
such application is filed at the stage of completion of
argument of the parties and the matter is posted for
judgment, is no ground to reject the impugned application,
as there is no word like targeted case found in CPC.
5.6 Learned advocate Mr. Majmudar for the petitioner
would further submit that it would not be fatal having not
disclosed the date of knowledge of suit by the defendant
No.13 while presenting the impugned application.
5.7 Learned advocate Mr. Majmudar for the petitioner
would further submit that with costs, the prayer made by the
defendant no.13 ought to have been considered by the trial
Court and the suit filed by the petitioner requires to be
heard together with subject suit.
Page 7 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
5.8 Lastly, Learned advocate for the petitioner would
submit that after framing the issues, no further notice came
to be served upon the defendant No.13, their right of
defendant No.13 to cross examine the plaintiff was affected,
which ought to have been re-opened by the trial Court.
5.9 To buttress his argument, learned advocate Mr.
Majmudar for the petitioner would refer and rely upon the
decisions of the Hon’ble Apex Court in the cases of
(i) Rakesh Kumar Jain Vs. Zulkfar Ali reported in 2023
SCC Online AII 2821 (relied upon Para-7 to 10).
(ii) Ajhar Ali and ors. Vs. Saidur Rahman @ Saidul Islam
and another reported in (2011) 6 Gauhati Law Reporters
463 (relied upon Para-6, 7 & 8).
(iii) Til Bahadur Konwar Vs. (Smt.) Dilu Sahu reported in
2005 SCC Online Gau 74 (relied upon Para-11, 18, 24 to 27).
5.10 No other and further submissions have been made
by the Learned advocate Mr. Majmudar for the petitioner.
Analysis
6. At the outset, I would like to remind myself the scope
Page 8 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
and ambit of power of this Court while considering the
application filed under Article 227 of the Constitution of
India, for which I would like to refer and reply upon the
decisions of Hon’ble Apex Court in the case of Sameer Suresh
Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013
(9) SCC 374, the relevant observation of the aforesaid judgment
reads as under :-
“[6] In our view, the impugned order is liable to be set aside because
while deciding the writ petition filed by the respondent the learned
Single Judge ignored the limitations of the High Court’s jurisdiction
under Article 227 of the Constitution. The parameters for exercise of
power by the High Court under that Article were considered by the two
Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and
Ors., 2003 6 SCC 675. After considering various facets of the issue,
the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does
not affect in any manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the
High Court, against which remedy of revision has been
excluded by the Code of Civil Procedure Amendment Act No. 46
of 1999 are nevertheless open to challenge in, and continue to
be subject to, certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction, i.e. when a subordinate
Court is found to have acted (i) without jurisdiction – by
assuming jurisdiction where there exists none, or (ii) in excess
of its jurisdiction – by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law or the rules
of procedure or acting in violation of principles of natural justice
Page 9 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
where there is no procedure specified, and thereby occasioning
failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution
is exercised for keeping the subordinate Courts within the
bounds of their jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or has failed to
exercise a jurisdiction which it does have or the jurisdiction
though available is being exercised by the Court in a manner
not permitted by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to exercise its
supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied: (i) the error
is manifest and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can
be perceived or demonstrated without involving into any lengthy
or complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the
subordinate Court has chosen to take one view, the error cannot
be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in appropriate
cases where the judicial conscience of the High Court dictates it
to act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two jurisdictions is sought
to be invoked during the pendency of any suit or proceedings in
a subordinate Court and the error though calling for correction is
yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there against and
entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth flow and/or
early disposal of the suit or proceedings. The High Court may
Page 10 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
feel inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable of
correction at a later stage and refusal to intervene would result
in travesty of justice or where such refusal itself would result in
prolonging of the lis. (
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or correct
errors in drawing inferences or correct errors of mere formal or
technical character.
(9) In practice, the parameters for exercising jurisdiction to issue
a writ of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction
exercised by the High Courts in India unlike English Courts has
almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari the High
Court may annul or set aside the act, order or proceedings of
the subordinate Courts but cannot substitute its own decision in
place thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to guide the
subordinate Court as to the manner in which it would act or
proceed thereafter or afresh, the High Court may in appropriate
cases itself make an order in supersession or substitution of the
order of the subordinate Court as the Court should have made
in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3
SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)
“(a) A petition under Article 226 of the Constitution is different
from a petition under Article 227. The mode of exercise of power
by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a
writ petition. The history of the conferment of writ jurisdiction on
High Courts is substantially different from the history of
conferment of the power of superintendence on the High Courts
under Article 227 and have been discussed above.
Page 11 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
(c) High Courts cannot, at the drop of a hat, in exercise of its
power of superintendence under Article 227 of the Constitution,
interfere with the orders of tribunals or Courts inferior to it. Nor
can it, in exercise of this power, act as a Court of appeal over
the orders of the Court or tribunal subordinate to it. In cases
where an alternative statutory mode of redressal has been
provided, that would also operate as a restrain on the exercise
of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of
their power of superintendence have been repeatedly laid down
by this Court. In this regard the High Court must be guided by
the principles laid down by the Constitution Bench of this Court
in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC
215] and the principles in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] have been repeatedly followed by
subsequent Constitution Benches and various other decisions of
this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] , followed in subsequent cases,
the High Court in exercise of its jurisdiction of superintendence
can interfere in order only to keep the tribunals and Courts
subordinate to it, ‘within the bounds of their authority’.
(f) In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and by
not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court
can interfere in exercise of its power of superintendence when
there has been a patent perversity in the orders of the tribunals
and Courts subordinate to it or where there has been a gross
and manifest failure of justice or the basic principles of natural
justice have been flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
Courts subordinate to it, is a possible view. In other words the
Page 12 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
jurisdiction has to be very sparingly exercised.
(i) The High Court’s power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part
of the basic structure of the Constitution by the Constitution
Bench of this Court in L. Chandra Kumar v. Union of India
[(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore
abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the
Civil Procedure Code (Amendment) Act, 1999 does not and
cannot cut down the ambit of High Court’s power under Article
227. At the same time, it must be remembered that such
statutory amendment does not correspondingly expand the High
Court’s jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of
the High Court under Article 227, it transpires that the main
object of this article is to keep strict administrative and judicial
control by the High Court on the administration of justice within
its territory.
(m) The object of superintendence, both administrative and
judicial, is to maintain efficiency, smooth and orderly functioning
of the entire machinery of justice in such a way as it does not
bring it into any disrepute. The power of interference under this
article is to be kept to the minimum to ensure that the wheel of
justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and Courts
subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is
not to be exercised just for grant of relief in individual cases but
should be directed for promotion of public confidence in the
administration of justice in the larger public interest whereas
Page 13 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
Article 226 is meant for protection of individual grievance.
Therefore, the power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial discipline pointed
out above.
(o) An improper and a frequent exercise of this power will be
counterproductive and will divest this extraordinary power of its
strength and vitality.”
Emphasized supplied.
6.1 The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181,
wherein the Hon’ble Supreme Court of India has held as
under:-
“15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel v. Garment Craft,
2019 SCC OnLine Del 11943] is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory jurisdiction
does not act as a Court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under challenge is
based. Supervisory jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or can be supported.
The High Court is not to substitute its own decision on facts and
conclusion, for that of the inferior Court or tribunal. [Celina Coelho
Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1
SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or flagrant abuse,
violation of fundamental principles of law or justice. The power under
Article 227 is exercised sparingly in appropriate cases, like when there
is no evidence at all to justify, or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the
Court or tribunal has come to. It is axiomatic that such discretionaryPage 14 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATIONC/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in
Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate
(P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6)“6. The scope and ambit of exercise of power and jurisdiction by
a High Court under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this Court.
The exercise of power under this article involves a duty on the
High Court to keep inferior Courts and tribunals within the
bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High Court
is not vested with any unlimited prerogative to correct all kinds
of hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate Courts or tribunals. Exercise of
this power and interfering with the orders of the Courts or
tribunals is restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice,
where if the High Court does not interfere, a grave injustice
remains uncorrected. It is also well settled that the High Court
while acting under this Article cannot exercise its power as an
appellate Court or substitute its own judgment in place of that of
the subordinate Court to correct an error, which is not apparent
on the face of the record. The High Court can set aside or
ignore the findings of facts of an inferior Court or tribunal, if
there is no evidence at all to justify or the finding is so perverse,
that no reasonable person can possibly come to such a
conclusion, which the Court or tribunal has come to.”
Emphasized supplied.
6.2 Now, adverting the issue germane in the present
application as to Whether the defendant No.13 was properly
served by the bailiff of Court at the relevant point of time or
not and service of notice affected upon wife of defendant
No.13 can be considered as valid and effective service or
Page 15 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
not ?
6.3 It is undisputed that bailiff had served notice upon the
wife of the petitioner – defendant No.13 on 15.09.2007, the
bailiff report is available at page-281/A of the present
application (Annexure -Q colly). The reading of bailiff report
clearly indicate that bailiff went to the place of defendant
No.13 to serve the notice of suit and at that time, the wife of
defendant No.13 met the bailiff and informed him that her
husband is out of home. The bailiff has informed her to
receive notice of summon of suit as well as copy of plaint to
which she has shown her willingness to accept it. It is
undisputed that since service of notice of summon i.e.
15.09.2009 till July, 2024, the defendant No.13 chosen not to
appear in the suit. So, it was nearly a delay of 16 years in
filing impugned application whereby, defendant No.13 wants
to reopen his right to file written statement, cross-examine
plaintiff, lead evidence etc. Thus, the copy of plaint as well as
summon of suit came to be served upon the wife of
defendant No.13.
6.4 So far as another limb of argument of learned advocate
for the petitioner, that after framing the issues, the trail
Court was required to serve another notice upon defendant
No.13 is concerned, once the matter is ordered to proceed
Page 16 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
ex-parte by the trial Court and in absence of any express
mandatory provisions shown by the learned advocate for the
petitioner to this Court, such argument is not required to be
accepted, especially when for all these years (16 years),
defendant No.13 has not bothered to appear before the trial
Court.
6.5 Moreover, it is very strange that despite subject suit
and suit filed by the defendant No.13 are pending before the
Civil Court, Sanand, learned advocate for the petitioner
appearing in the suit filed by him could not notice it, but
suddenly it came to his knowledge that subject suit is
pending which reaches upto stage of judgement by the trial
Court. This conduct of the defendant No.13 and also his
Advocate speaks volume and thereby the Court can not
accept the prayer of defendant No.13, as his act is not bona-
fide.
6.6 At this stage, to appreciate the arguments so canvassed
by the learned advocate for the petitioner, it is apt to refer
and rely upon the Order 5 rule 15 of CPC, which reads as
under :-
“15. Where service may be on an adult member of defendant’s
family.– Where in any suit the defendant is absent from his residence
at the time when the service of summons is sought to be effected on
his at his residence and there is no likelihood of his being found at thePage 17 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATIONC/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
residence within a reasonable time and he has no agent empowered to
accept service of the summons on his behalf, service may be made on
any adult member of the family, whether male or female, who is
residing with him. Explanation. –A servant is not a member of the
family within the meaning of this rule.”
6.7 The plain reading of the aforesaid provision would
clearly indicate that service of summon can be served upon
the adult member of the family of defendant, who is residing
with him, albeit when there is no likelihood to such
defendant being found at residence within reasonable time.
Prima facie, reading of provision would indicate two
contingency wherein service of summon can be affected on
family member of defendant i.e. i) no likelihood of his being
found at the residence within a reasonable time & ii) no agent
empowered to accept service of the summons on his behalf. So, far
as first contingency is concern, it would depend upon facts and
circumstances of each case and it would also depends upon
satisfaction of bailiff to that effect either by conduct or writing his
short opinion if any. As far as agent is concern, it would ordinarily
applied in a case where defendant is jurist person like
company/firm/trust/state instrumentality alike and not any
individual.
6.8 So far case on hand is concern, the report of bailiff
indicates that wife of defendant no.13 has informed that
Page 18 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
defendant no.13 went out of home and when he has
informed her about service of notice of summon/ plaint, she
has shown her willingness to accept it. In these background
of facts, notice was served upon the wife of defendant
No.13. Thus, when bailiff having so observed as above in his
report and in said background of fact served notice of
summon upon wife of defendant No.13 is concern, it would
amount to valid service of notice upon defendant No.13.
6.9 According to my view, service of summon upon
defendant No.13 is valid service and not contrary to the
aforesaid provisions of CPC. The judgments which are relied
upon by the learned advocate Mr. Majmudar for the
petitioner would be no help to him as facts of this case are
not similar or identical to the case on hand. All these
judgements are only persuasive value and no binding force
to this Court.
6.10 In the case of Rakesh Kumar Jain (supra), wife of
defendant has refused to accept the notice and also it has
been observed that bailiff has not recorded in his report that
wife has informed him that there is no possibility of
returning the defendant till evening. Even though, summon
was pasted on the house of defendant. So, in peculiar facts
and circumstances of that case, the High Court of Allahabad,
Page 19 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
the plea of defendant about non-service of summon upon
him was accepted. Whereas, in the present case, summon has
been willingly received by the wife of defendant No.13 which
was duly served upon him.
6.11 In the case of Ajhar Ali (supra) also defendant
Nos. 1 & 2 though real brothers but not residing together
and service of summon of defendant No.1 was served by
defendant No.2, is considered to be non-service as per Order
5 rule 15 of CPC by the High Court of Gauhati. Whereas, in
the present case, it’s not the case of defendant No.13 that
his wife was not residing with him when she has received
notice.
6.12 In the case of Til Bahadur Konwar (supra), it
appears from the facts of the case, it was not found from the
report of bailiff as to whether actually the wife of defendant
has received summon/ notice or not, which is so observed in
Para-26 by the High Court. In the present case, no such
argument is canvassed either before the trial Court or either
before this Court.
6.13 Thus, in view of the aforesaid facts and
circumstances of the case, defendant No.13 when served
with notice, albeit served through his wife being family
Page 20 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
member, he could have been held to be served with notice of
subject suit and if so vigilant, then he could have appeared in
the suit and contested it.
6.14 At this stage, it is also required to be observed
that initially the suit came to be filed before the Civil Court,
Ahmedabad (Rural) which came to be transferred to Civil
Court, Sanand in the year 2017 and case status of Special
Civil Suit No. 86 of 2017 (old No. 380 of 2009) would indicate
that fresh notice was again issued by the Transferee Court,
which appears to have been served upon defendants. This
fact can be confirmed from reading of Para-2 of the order
dated 29.11.2023 passed by the Transferee Court below Exh.
5 – injunction application (Annexure-Z) .
6.15 Be that as it may, it would not be believable that
defendant No.13 was not at all aware about the pendency of
the subject suit till it reaches to the stage of judgment. It is
hard to believe that wife of defendant No.13 for all these 16
years would not have informed him about subject suit. There
would be a delay of about 16 years in filing written
statement by defendant No.16 which is even not prayed to
condone it in impugned application as defendant No.13 has
conveniently and cleverly not refer date of his knowledge of
subject suit in his application. As such no sufficient cause
Page 21 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
made out by defendant No.13 for not approaching Court for
quite long time. As per settled legal position of law, when
party to suit remain indolent, negligent and inaction all
throughout proceeding, no leniency to be shown in his
favour.
6.16 The defendant No.13 has not disclosed in the
impugned application that when he came to know about the
pendency of the subject suit, which shows that the impugned
application is not bona-fide. The conduct of defendant No.13
so observed in the impugned order passed by the trial Court
can not be found fault with in light of the fact that
defendant No.13 has not disclosed date of his knowledge
about the subject suit. It is true that in Para-43 of the
present application, the petitioner – defendant No.13 has
tried to give factum of knowledge of subject suit by stating
that when his Advocate was checking status of his aforesaid
suit, at that point of time, the Advocate for the petitioner
came to know about the subject suit. Such averment is
nothing to cover up the lacuna which is found in the
impugned application in relation to the date of knowledge of
defendant No.13. The averments made in Para-43 of the
present application is vague, in as much as the actual date of
knowledge of Advocate of defendant no.13 is not clearly
spelt out.
Page 22 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
6.17 At this stage, it is profitable to refer and rely upon
the decisions of the Hon’ble Apex Cout in the case of Atcom
Technologies Limited Vs. Y. A. Chunawala and Co. & Ors.
reported in 2018 Law Suit (SC) 481) , wherein it has been
held thus in Para Nos. 13,14,15,16 &17 which reads as
under :-
“13. We shall proceed on the basis that summons in Suit No. 4870 of
1999 were served only in the year 2009. In this behalf, it may be stated
that in this suit, unconditional leave to defend was granted by the
learned Single Judge on March 16, 2002. By the same order, all three
suits were directed to be tried together. Therefore, Vakalatnama in the
suit was also filed and on the dates fixed before the Court,
respondents were appearing having knowledge about the Suit No.
4870 of 1999 as well. Obviously, this leave to defend was granted after
the respondents had put in appearance and filed application for grant
of leave to defend. Thus, summons in the suit were served upon the
respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of
Order XXXVII of the Code of Civil Procedure , 1908. May be, thereafter,
Writ of Summons were not served again upon the respondents.
However, in any case, these summons were served in the year 2009.
Therefore, it was incumbent upon the respondents to show as to in
what manner they were prevented from filing the written statement.
14. It has to be borne in mind that as per the provisions of Order VIII
Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated
to present a written statement of his defence within thirty days from the
date of service of summons. Proviso thereto enables the Court to
extend the period upto ninety days from the date of service of
summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil
Procedure, 1908 reads as under:
“1. Written statement.- The defendant shall, within thirty days
from the date of service of summons on him, present a written
statement of his defence:
Page 23 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be
allowed to file the same on such other day, as may be specified
by the Court, for reasons to be recorded in writing, but which
shall not be later than ninety days from the date of service of
summons.”
15. This provision has come up for interpretation before this Court in
number of cases. No doubt, the words ‘shall not be later than ninety
days’ do not take away the power of the Court to accept written
statement beyond that time and it is also held that the nature of the
provision is procedural and it is not a part of substantive law. At the
same time, this Court has also mandated that time can be extended
only in exceptionally hard cases. We would like to reproduce the
following discussion from the case of Salem Advocate Bar Association,
Tamil Nadu v. Union of India, (2005) 6 SCC 344:
“21. …There is no restriction in Order 8 Rule 10 that after expiry
of ninety days, further time cannot be granted. The court has
wide power to “make such order in relation to the suit as it
thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1
providing for the upper limit of 90 days to file written statement
is directory. Having said so, we wish to make it clear that the
order extending time to file written statement cannot be made in
routine. The time can be extended only in exceptionally hard
cases. While extending time, it has to be borne in mind that the
legislature has fixed the upper time-limit of 90 days. The
discretion of the court to extend the time shall not be so
frequently and routinely exercised so as to nullify the period
fixed by Order 8 Rule 1.”
16. In such a situation, onus upon the defendant is of a higher
degree to plead and satisfactorily demonstrate a valid reason for not
filing the written statement within thirty days. When that is a
requirement, could it be a ground to condone delay of more than 5
years even when it is calculated from the year 2009, only because of
the reason that Writ of Summons were not served till 2009?”
6.18 In the case of Nitin Mahadeo Jawala & Ors. Vs.
Page 24 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATIONC/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
Bhaskar Mahadeo Mutke reported in 2024 Law Suit (SC)
1062, more particularly in Para- 4, 6 & 7 which reads as
under :-
“4. It appears from the materials on record that as the defendants
failed to file their written statement in time the stage to file written
statement was closed. Thereafter permission of the Trial Court was
prayed for to file the written statement after a period of over 4½ years.
The Trial Court permitted the defendants to file their written statement.
The plaintiff being dissatisfied with the same challenged the order
passed by the Trial Court permitting the defendants to file written
statement after a period of 4½ years. The High Court allowed the
petition and set aside the order passed by the trial court.
xxxxxx
6. We have noticed over a period of time the growing tendency on
the part of the litigants in throwing the entire blame on the head of the
advocate. Not only this, we have come across cases where the
concerned advocate has filed an affidavit in favour of his client(s)
saying that he was unable to attend the proceedings due to some
personal reasons difficulties thereby facilitating the litigant to get the
delay condoned.
7. Even if we assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground to condone
long and inordinate delay as the litigant owes a duty to be vigilant of
his own rights and is expected to be equally vigilant about the judicial
proceedings pending in the court initiated at his instance.”
6.19 All these facts, provision of law and ratio of
aforesaid discussed judgements lead to only one conclusion
that defendant No.13 has remained indolent, negligent and
silent for all these years despite service of notice upon him
at the relevant point of time. The impugned application also
bereft of any material particulars, non-disclosing complete
Page 25 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
NEUTRAL CITATION
C/SCA/2714/2025 JUDGMENT DATED: 05/03/2025
undefined
facts, not bona-fide, having not disclosed date of knowledge
of defendant No.13 in relation to pendency of subject suit
thereby, filed it at fag end of subject suit, then requires to be
rejected.
Conclusion
7. Thus, in view of the aforesaid facts and circumstance of
case, I am in complete agreement with the trial Court. This
Court finds that no gross error of law and or any
jurisdictional error committed by the trial Court while
rejecting the impugned application. There is no perversity,
arbitrariness and no erroneous observation made by the trial
Court while passing the impugned order thereby, this Court
would not like to interfere with the impugned order while
exercising its power under Article 227 of the Constitution of
India.
8. The upshot of aforesaid discussions, reasons and
observations, this present application lacks merits and
requires to be dismissed. The present application is hereby
dismissed. No order as to costs..
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
Page 26 of 26
Uploaded by SALIM(HC01108) on Tue Mar 11 2025 Downloaded on : Tue Mar 11 21:28:25 IST 2025
[ad_1]
Source link