AO/330/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 330 of 2008 With CIVIL APPLICATION No. 12089 of 2008 In APPEAL FROM ORDER No. 330 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = AWESOME SPORTS WEAR & 3 - Appellant(s) Versus P S INTERNATIONAL - Respondent(s) ========================================= = Appearance : MR NIRZAR S DESAI for Appellant(s) : 1 - 4. MR CG SHARMA for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/10/2008 ORAL JUDGMENT AO/330/2008 2/5 JUDGMENT 1. ADMIT. Shri C.G. Sharma, learned advocate waives service of notice of admission on behalf of respondent-original plaintiff. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the Appeal from Order is taken up for final hearing today. 3. By way of this Appeal from Order, the appellants herein- original defendants have challenged the order passed by the learned Auxiliary Chamber Judge, Court No. 8, City Civil Court, Ahmedabad dated 27th March, 2008 below Summons for Judgement (Exh. 10) in Summary Civil Suit No. 1748/2006 by which the learned Auxiliary Chamber Judge has granted conditional leave to the appellants-original defendants to defend the Summary Civil Suit No. 1748/2006 on condition to deposit Rs. 6 lakhs. 4. Shri Nirzar Desai, learned advocate appearing on behalf of the appellants-original defendants has submitted that in the impugned order, the learned Chamber Judge has observed that the respondent-original plaintiff has served legal notice on the appellants-original defendants, acknowledgment receipts whereof are produced on record at 4/60 to 4/69 and the appellants-original defendants have not replied to the said legal notice and for the first time, the contentions regarding interest, excess payment and inferior quality goods is taken in the summons for judgement. It is submitted that the said findings and the observations of the learned Chamber Judge is factually incorrect. It is submitted that ,in fact in the plaint and summons for judgement itself, it is stated by the AO/330/2008 3/5 JUDGMENT respondent-original plaintiff that the legal notice served upon the appellants-original defendants has been replied and, therefore, it cannot be said that the dispute has been raised for the first time in the summons for judgement. 5. Shri C.G. Sharma, learned advocate appearing on behalf of respondent herein-original plaintiff has submitted that what is meant by the learned Chamber Judge is that the earlier letters are not replied and it is the contention on behalf of the respondent-original plaintiff that the earlier letters have not been replied by the appellants-original defendants and no controversy was raised earlier and, therefore, it is submitted that no illegality has been committed by the learned Chamber Judge in granting conditional leave to the appellants-original defendants to defend the suit on deposit of Rs. 6 lakhs against the claim of principal amount of Rs. 15,93,220/-. 6. Heard the learned advocates appearing on behalf of the respective parties. On considering the impugned order passed by the learned Chamber Judge, it appears that the same is on incorrect and/or inaccurate findings. The learned Chamber Judge in the impugned order has observed that the respondent-original plaintiff has served legal notice on the appellants-original defendants and though the said notice has been served, the appellants-original defendants has not replied to the said legal notice and for the first time, the contention regarding interest, excess payment and inferior quality goods is taken in the summons for judgement. However, the same seems to be incorrect and inaccurate. The respondent-original plaintiff himself has stated that the legal notice has been replied by the appellants-original defendants but the dispute AO/330/2008 4/5 JUDGMENT has no substance. Thus, it appears that the learned Chamber Judge has not properly applied his mind. It may be a different thing , as per the respondent-original plaintiff, that the earlier letters have not been replied and no controversy was raised earlier but that does not mean that the appellants-original defendants have not replied to the legal notice at all. On considering the reply to the notice, the learned Chamber Judge may take a different view but he cannot say that there is no reply to the legal notice at all and for the first time the dispute has been raised in the summons for judgement. Under the circumstances, the impugned order deserves to be quashed and set aside and the matter is to be remanded to the learned Chamber Judge to decide the summons for judgement afresh on its own merits and considering all the materials on record. 7. Under the circumstances and for the reasons stated hereinabove, the appeal succeeds. The impugned order passed by the learned Auxiliary Chamber Judge, Court No. 8, City Civil Court, Ahmedabad dated 27th March, 2008 below Summons for Judgement (Exh.10) in Summary Civil Suit No. 1748/2006 is hereby quashed and set aside and the matter is remanded to the City Civil Court, Ahmedabad to decide the same afresh n its own merits on considering all the materials on record, without in any way being influenced by the present order. The Appeal from Order is allowed to the aforesaid extent. 8. Before parting with the present order, it is to be noted that this Court has come across three to four such orders passed by the very learned Chamber Judge and has found that while deciding the Summons for Judgement, the learned AO/330/2008 5/5 JUDGMENT Chamber Judge has not stated the correct facts in the order and the findings/observation are contrary to the record and this Court was constrained to remand matters to the trial Court for deciding the same afresh considering the relevant facts on record. This is the fifth order in which this Court is required to remand the matter to the learned Chamber Judge. The learned Chamber Judge may take care in future and whatever findings are given, the same be on verifying the evidence on record and considering the entire material on record and the learned Chamber Judge shall see to it that the findings are not given de hors the record and in haste. CIVIL APPLICATION No. 12089/2008 In view of disposal of the Appeal from Order, no order on the Civil Application, and the same is disposed of accordingly. (M.R. SHAH, J.) siji