SCA/3797/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3797 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 ? ========================================================= RAJNIKANT PRABHUDAS RUPAREL - Petitioner(s) Versus THE LIFE INSURANCE CORPORATIONOF INDIA - Respondent(s) ========================================================= Appearance : MS SEJAL K MANDAVIA for Petitioner(s) : 1, MR AMARNATH M BHATT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/08/2008 ORAL JUDGMENT 1. Rule. Mr.Amarnath M.Bhatt,learned advocate for respondent, waives service of rule. With the consent of learned advocates for both the parties, the matter SCA/3797/2008 2/4 JUDGMENT is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner original defendant has prayed for an appropriate writ, order or direction quashing and setting aside the order dated 31.01.2008 passed by the Learned Presiding Officer, Fast Track Court No.4, Gandhinagar in Miscellaneous Civil Appeal No.111 of 2007 as well as quashing and setting aside the order passed in Civil Miscellaneous Application No.54 of 2007 and quashing and setting aside ex-parte judgment and decree passed by the learned Trial Court dated 11.05.2007 in Special Civil Suit No.2 of 1999. 3. It appears that respondent herein Life Insurance Corporation of India filed Special Civil Suit No.21 of 1999 against the petitioner for recovery of Rs.2,16,220.75 ps. and an ex-parte judgment and decree came to be passed by the lower Court. Therefore, the petitioner filed an application to set aside the judgment and decree under Order 9 rule 13 of The Civil Procedure Code, which came to be dismissed. Against which, the petitioner preferred an appeal before the learned Appellate Court which also came to be dismissed. Being aggrieved and dissatisfied with the same, the petitioner has preferred this Special Civil Application under Article 227 of the Constitution of India. 4. The Petitioner has already deposited the amount SCA/3797/2008 3/4 JUDGMENT of Rs.1,00,000/- before this Court. Considering the fact that decree is of Rs.2,16,220.75 ps. and the suit claim was of Rs.2,16,220.75 ps, if the petitioner is directed to deposit further sum of Rs.1,00,000/- before the trial Court and the impugned ex-parte judgment and decree is quashed and set aside, and the learned trial Court is directed to dispose of the suit in accordance with law and on merit after hearing all concerned, the same will meet the ends of justice. The learned advocate appearing for the petitioner has submitted that over and above, the amount of Rs.1,00,000/- already deposited by the petitioner, the petitioner shall also deposit further Rs.1,00,000/- with the trial Court within the period of 30 days from today. Accordingly, the present Special Civil Application is required to be allowed by quashing the impugned Order as well as the ex- parte judgment and decree. 5. For the reasons stated above, petition succeeds. The impugned ex-parte judgment and decree dated 31.01.2008 passed in Civil Suit No.21 of 1999 is hereby quashed and set aside on condition that petitioner shall deposit further sum of Rs.1,00,000/- with the trial Court within the period of 30 days from today. On depositing the said amount only, the trial Court is directed to decide the Civil Suit No.21 of 1999 afresh in accordance with law and after giving an opportunity to all concerned. The petitioner shall co-operate the learned trial Court in early disposal of the suit. The Registry is SCA/3797/2008 4/4 JUDGMENT directed to transmit the amount already deposited by the petitioner to the trial court,immediately. Rule is made absolute accordingly. There shall be no order as to costs. [M.R.SHAH, J.] bdd