SCA/1879/2005 1/53 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1879 of 2005 WITH CIVIL APPLICATION No. 4147 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- =================================== 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 ? =================================== PATINA TRADING CO. PVT.LTD. & 1 - Petitioners Versus DIPAKBHAI BABULAL PAREKH SOLE PROPRIETOR OF - Respondent =================================== Appearance : MR AS VAKIL for Petitioners. MR YF MEHTA for Respondent. =================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ SCA/1879/2005 2/53 JUDGMENT Date : 13/06/2007 COMMON ORAL JUDGMENT 1. The petitioners – original defendants have filed this petition under Article 227 of the Constitution of India praying for quashing and setting aside the judgment and order dated 30.07.2004 passed by the learned Chamber Judge, Court No. 15, City Civil Court, Ahmedabad below application Exh. 11 in Summary Special Suit No. 3702 of 2002 and the consequential decree dated 30.07.2004 and further praying for quashing and setting aside the Execution/Darkhast No. 364/2004 pending in the City Civil Court, Ahmedabad. 2. The petition was admitted and rule was issued on 15.02.2005. The decree passed in Summary Suit No. 3702 of 2002 dated 30.07.2004 was stayed on condition that the petitioners shall deposit Rs.50,000/- with the Trial Court within a period of 30 days from the date of the said order. The amount of Rs.50,000/- was deposited by the petitioners within the time granted by this Court and stay is in SCA/1879/2005 3/53 JUDGMENT operation till this date. 3. It is the case of the respondent–original plaintiff in the Summary Suit filed before the City Civil Court, Ahmedabad that the petitioners are dealing in manufacturing, distribution and sales of edible sweets, namkeen and other items with different brand names, mainly, Mohan Namkeen and Mohanlal S. Mithaiwala. The petitioner No. 1 had launched the said products in the city of Ahmedabad and the outskirts of Ahmedabad and Gujarat in the year 1999. For the purpose of enhanced sales and wide publicity of its products, the petitioner No. 1 had approached the respondent-plaintiff for advertising the said products through public and dealer wall paintings. The terms and conditions between the petitioner No. 1 and the respondent- plaintiff were settled. The petitioner No. 1 has paid a sum of Rs.15,000/- initially to the respondent- plaintiff. The respondent-plaintiff has accordingly carried out the contract work at various places/walls/sites. SCA/1879/2005 4/53 JUDGMENT 4. The respondent-plaintiff thereafter raised on the petitioner Nos. 1, 23 invoices, for a total sum of Rs.3,51,676/-. The first invoice was dated 30.08.1999 and the last invoice was dated 17.09.1999. Under the said invoices, 18% interest was chargeable on amounts remaining unpaid after due date, legal proceeding by or against was required to be instituted in Ahmedabad only and the payments were required to be made within five days. The petitioner No. 1 has paid a further amount of Rs.85,000/- to the respondent-plaintiff on 1.11.1999 and thus, according to the respondent-plaintiff, a total sum of Rs. 1 Lac was paid by the petitioner No.1 to the respondent-plaintiff. 5. It is the case of the petitioners–defendants that the respondent-plaintiff addressed a letter dated 12.02.2000 wherein the respondent-plaintiff has admitted that the respondent-plaintiff has done more work than was agreed between the parties. The said letter dated 12.02.2000 clearly admits that the SCA/1879/2005 5/53 JUDGMENT additional work done was of 50,000 Sq. Ft. (the value of which would be approximately Rs. 2 Lacs, because the alleged agreed rate was Rs. 4 per Sq. Ft. of wall painting). However, the said letter dated 12.02.2000 together with its enclosures were not produced and/or referred to by the respondent- plaintiff in the suit. Thereafter, the respondent- plaintiff issued a notice dated 30.06.2000 to the petitioner No.1 at Mumbai through its Advocate and called upon the petitioner No. 1 to pay a sum of Rs.2,51,676/- within seven days from the date of receipt thereof. Thereafter the petitioner No. 1 through its advocate issued a reply dated 06.07.2000 to the said notice dated 30.06.2000 and denied the contents of the said notice and also called upon the respondent-plaintiff to supply to the petitioner No. 1 and/or its Advocate the copy of the Contract referred to in the said notice dated 30.06.2000. The respondent-plaintiff did not respond. All the three letters have not been referred to in the plaint and/or produced along with the plaint. SCA/1879/2005 6/53 JUDGMENT 6. It is also the case of the petitioners that the respondent-plaintiff has filed a complaint with the Police Sub-Inspector, Maninagar Police Station, Ahmedabad in or around January 2001. The Criminal Investigation Department has, vide its communication dated 14.04.2001 informed the petitioner No. 1 at Mumbai about the same. The respondent-plaintiff has also not made any reference to the said criminal complaint/case either in the plaint or has not produced any documents in that behalf along with the plaint. The respondent-plaintiff thereafter on 18.10.2002 filed the suit against the petitioners before the Trial Court and prayed for a decree for an aggregate sum of Rs.3,93,333.84ps. which comprises of Rs.2,51,676/- towards the principal amount and Rs.1,41,658.74ps. towards interest, with further interest @ 18% p.a. Along with the said suit, the plaintiff filed/produced several documents as per the list of the documents. In the cause title of the plaint, it is stated that the process/summons of the petitioner No. 1 be served upon the petitioner No.2. SCA/1879/2005 7/53 JUDGMENT 7. It is also the case of the petitioners that from the Rojnama, it appears that the Trial Court ordered issuance of summary summons upon the petitioners on 18.10.2002. Again on 08.01.2003, the Rojnama indicates that the summons upon the petitioners/defendants had returned unserved and hence, fresh summons were ordered to be reissued. Thereafter, the respondent-plaintiff did not pay the process fee for a long time. By an order dated 24.03.2003, fresh summons were reissued against the petitioners-defendants. The Rojnama indicates that on 15.07.2003, fresh summons had also returned unserved and again the Trial Court had issued fresh summons upon the petitioners / defendants on 24.09.2003. The Rojnama indicates that the fresh summons also returned unserved and were ordered to be reissued. On 13.11.2003, the Rojnama again indicates that fresh summons returned unserved and were once again ordered to be reissued. On 18.12.2003, as fresh summons had returned unserved, the Trial Court once again SCA/1879/2005 8/53 JUDGMENT ordered issuance of Summons. Similar endorsements were made in the Rojnama on 23.01.2004, 05.02.2004, 01.03.2004 and 15.03.2004. Thereafter, it appears that on 6.04.2004, the respondent-plaintiff gave an application Exh.10 to serve the summons upon the petitioners by Regd. Post Acknowledgment Due which came to be granted by the Trial Court. The Rojnama indicates that on 23.06.2004, the Regd. Post Acknowledgment Due had returned duly served against the petitioner Nos. 1 & 2 with the endorsement “refused”. 8. It is also the case of the petitioners that at no point of time, the respondent-plaintiff has ever attempted to serve the summons of the suit upon the petitioner No. 1 at Mumbai. The summons were always sought to be served upon the petitioner No. 2 at the address mentioned in the cause title. At the address of the petitioner No. 2 mentioned in the cause title, there is only one employee who is not authorised to accept the Summons etc. either on behalf of the petitioner No. 1 Company or the petitioner No.2. Even after SCA/1879/2005 9/53 JUDGMENT having come to know that the said employee is not authorised to accept service of summons, the respondent-plaintiff never attempted to serve the same at Mumbai. 9. It is also the case of the petitioners that on 20.07.2004, the respondent-plaintiff filed an application Exh. 11 purporting to be an application under Order 37, Rule 2 of the Civil Procedure Code and stated in para 11 thereof that the respondent- plaintiff has sent the process/summons through Regd. Post Acknowledgment Due, and as per the endorsement, the petitioners have refused to accept the process/summons on 19.04.2004 and accordingly, the petitioners have not filed their appearance in the suit and consequently praying for a decree in favour of the respondent-plaintiff. The Trial Court, vide impugned order dated 30.07.2004 passed below Exh. 11 has observed that the petitioners have been validly served and that the petitioners have not filed any appearance and thereby proceeded to pass an order decreeing the SCA/1879/2005 10/53 JUDGMENT suit. The respondent-plaintiff has never even thereafter at any point of time informed the petitioners and/or communicated to the petitioners the order dated 30.07.2004. 10.It is also the case of the petitioners that on the basis of the order dated 30.07.2004, the Trial Court has drawn the decree and on the basis of the said judgment and decree dated 30.07.2004, the respondent-plaintiff filed Execution proceedings vide Darkhast No.364 of 2004 on or around 29.12.2004. In the said Darkhast, the Trial Court appears to have passed an order of attachment on 11.01.2005. The Bailiff of the Trial Court thereafter came at the address of the petitioner No.2 at Ahmedabad and attached/removed the various movables valued at approximately Rs.37,000/- on 19.01.2005. It is then only the employee of the petitioner No. 1 learnt about the suit and the execution proceedings. The said employee thereafter informed the petitioner No. 2 at Mumbai where he ordinarily resides, about the same. Thereafter the petitioner No. 2 got in touch SCA/1879/2005 11/53 JUDGMENT with his advocates at Mumbai, who advised him to approach the advocates at Ahmedabad to take further/appropriate steps in the matter. 11.Being aggrieved and dissatisfied with the impugned judgment and order dated 30.07.2004 and the decree dated 30.07.2004 passed by the Trial Court in the suit and being aggrieved by the execution proceedings/Darkhast No. 364 of 2004, the petitioners have approached this Court by way of this petition under Article 227 of the Constitution of India. 12.Mr. A.S. Vakil, learned advocate appears for the petitioners. Before he makes his submissions, the Court raised an issue regarding maintainability of the petition. Even in the affidavit-in-reply filed by the respondent, the same issue regarding maintainability of the petition is raised. Appropos to the query raised by the Court, Mr. Vakil has raised the contention that the petition has been admitted on 15.02.2005 and once the petition has been admitted, SCA/1879/2005 12/53 JUDGMENT the same cannot be dismissed on the ground of non- maintainability. To make good this submission, Mr. Vakil has relied on the decision of the Hon'ble Supreme Court in the case of Durga Enterprises (P) Ltd. And another V/s. Principal, Secretary Govt. of U.P. And others, (2004) 13 SCC 665 wherein it is held that the High Court, having entertained the writ petition which was pending for a long period of 13 years and in which pleadings were also completed, ought to have decided the case on merits instead of relegating the parties to a Civil Suit. 13.Mr. Vakil has further relied on the decision of this Court in the case of D. I. D. Franchisees' Association (Gujarat) V/s. Chief General Manager, Gujarat Telecom Circle (B.S.N.L. Corpn.) & Ors., (2004) 45(3) GLR 2609 wherein it is held that the learned counsel for the petitioners is justified in contending that the petitioners have approached this Court since they have no remedy SCA/1879/2005 13/53 JUDGMENT under Section 14 of the Telecom Regulatory Authority of India Act, 1997. Therefore, the petitioners are heard on merits as the same cannot be dismissed after a lapse of four years on the ground of other alternative remedy and also in view of the fact that they cannot approach the Tribunal since the license is issued under Section 4 (2) of the Act. 14.Mr. Vakil has further relied on the decision of this Court in the case of Chauhan Dhulsinh Chatursinh V/s. District Superintendent of Police, Sabarkantha and others, (2002) 43 (3) GLR 2626 wherein while dealing with the contention raised by the leaned A.G.P. with regard to maintainability of the petition, in view of the fact that there is alternative equally efficacious remedy available to the petitioner, the Court's attention was drawn to Section 27 of the Bombay Police Act and Rule 9 of the Bombay Police (Punishment and Appeal) Rules, wherein appeal against the orders SCA/1879/2005 14/53 JUDGMENT like the one under challenge is provided for. Though prima facie the contention appears to be well founded, the Court is not inclined to accept it because of the fact that the petition has been admitted way back on 30.07.1992 and now it has reached to the stage of final disposal and it will not be proper to dispose of the same on such technical ground. The Court further observed that had this objection been taken at the stage of preliminary hearing, it would have been of some meaning. However, at such a belated stage, if the petition is thrown out on such ground, the petitioner will be rendered remediless as the period for filing appeal under aforesaid provision by now must have expired long back. It is, therefore, most desirable to dispose of this petition on its merits. 15.Mr. Vakil has further relied on the decision of this Court in the case of Tata Chemicals Limited V/s. Adityana Nagar Panchayat, (2001) 42 (2) G.L.R. 1538 wherein it is held that whenever at the SCA/1879/2005 15/53 JUDGMENT admission stage, the Court finds that the alternative remedy is available, the petition at the threshold should be dismissed, directing the petitioner to resort to the other efficacious remedy available in law, but if the petition is admitted and the rule is issued, and thereafter, considerable time is passed, and the petition is heard on merits, the Court should not dismiss the petition only on the ground that other efficacious remedy when available ought to have been resorted to. The Court may also add that in the cases where appeal against the other challenge though permissible in law, as an efficacious remedy, the decision in appeal, however, is not going to set every question or dispute at rest and keep the same burning, meaning thereby doing complete justice is not possible, it would not be just and proper to direct the petitioner to resort to other alternative remedy available in the law. 16.Mr. Vakil has further relied on the decision of this Court in the case of Madhusudan Dharshibhai SCA/1879/2005 16/53 JUDGMENT Tank V/s. M. Anwar, (2000) 41 (3) G.L.R. 2403 wherein it is held that as such, this Court is fully justified to entertain this petition wherein the principle of natural justice has been violated. Moreover, the petition has been admitted in the year 1988. It is not proper for this Court to relegate the petitioner to avail of alternative remedy of appeal after twelve years, the matter can be decided on merits of the case. Thirdly, judicial trend of today is to shorten the litigations and decide in accordance with law and not to leave for further litigation. Thus, the objection raised by the learned Counsel for the respondent is not sustainable in the eye of law. 17.Mr. Vakil has further relied on the decision of this Court in the case of Dahyabhai Devjibhai Vasava V/s. Dy. District Development Officer (Rev.) Broach, (1979) 20 (2) G.L.R. 678 wherein it is held that not as a mandate of law (because of Article 226 (3) of the Constitution of India as was there in the year 1976 having been deleted), but as a matter SCA/1879/2005 17/53 JUDGMENT of self-imposed rule of procedure developed by this Court and the Supreme Court, the prerogative writ jurisdiction is not entertained when the litigant has not exhausted alternative remedies and particularly the remedies like an appeal under some law. This question, however, was prominently before this Court, when the matter was at the admissional stage. Despite this point having been urged, this Court admitted the matter. This would mean that the petitioner was led into the belief that this Court was not insistent on that normal rule of exhausting alternative remedy before approaching this Court and that it would be too late in the day for the Court now to reject this petition, after more than 3 and ½ years of its life in this Court. Because of this Court's action in admitting the matter, the petitioner has lost that chance of preferring appeal. 18.Apart from the above authorities cited by Mr. Vakil, in support of his submission that once the petition is admitted, it cannot be thrown over board on the ground that an alternative remedy is available to the SCA/1879/2005 18/53 JUDGMENT petitioner, Mr. Vakil has further made a submission that despite there being an alternative efficacious remedy available to the litigant, the petition may not be dismissed on that ground especially when order under challenge is violative of any fundamental rights or it is in excess of jurisdiction or without jurisdiction or it is in violation of the principles of natural justice. In such cases, it is immaterial as to whether petition is originally admitted or not. The Court should decide the petition on its own merits. In support of this submission, Mr. Vakil relied on the decision of the Hon'ble Supreme Court in the case of Himmatlal Harilal Mehta V/s. State of Madhya Pradesh and others, AIR 1954 S.C. 403 wherein it is held that the contention that because a remedy under the impugned Act is available to the assessee, he is disentitled to relief under Art. 226 stands negatived by the decision in AIR 1953 SC 252 of this Court in the State of Bombay V/s. The United Motors (India) Limited. The principle that a Court will not issue a prerogative writ when an adequate SCA/1879/2005 19/53 JUDGMENT alternative remedy was available does not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Art. 226. Moreover, since the remedy provided by the C.P. And Berar Sales Tax Act is of an onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of the tax, such a provision can hardly be described as an adequate alternative remedy. 19.Mr. Vakil further relied on the decision of the Hon'ble Supreme Court in the case of State of U.P. V/s. Mohammad Nooh, AIR 1958 S.C. 86 wherein it is held that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be SCA/1879/2005 20/53 JUDGMENT taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law. The superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The Court further held that if therefore, the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a SCA/1879/2005 21/53 JUDGMENT proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal, e.g. by furnishing security required by the statute, it cannot then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision. 20.Mr. Vakil has further relied on the decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of A. V. Venkateswaran, Collector of Customs, Bombay, V/s. Ramchand Sobhraj Wadhwani and another, AIR 1961 SUPREME COURT 1506 wherein it is held that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the SCA/1879/2005 22/53 JUDGMENT court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. The Court further held that the wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Art. 226, or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of SCA/1879/2005 23/53 JUDGMENT an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court. The Court further held that if the petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the court dealing with his petition under Art. 226 to exercise its discretion in his favour. 21.Mr. Vakil has further relied on the decision of the Hon'ble Supreme Court in the case of M. G. Abrol, Additional Collector of Customs, Bombay and SCA/1879/2005 24/53 JUDGMENT another V/s. M/s. Shantilal Chhotelal and Co., AIR 1966 SUPREME COURT 197 wherein while dealing with the contention that the High Court should not have exercised its jurisdiction under Article 226 of the Constitution of India, as the respondents had an effective remedy by way of an appeal to higher Customs Authorities, the Hon'ble Supreme Court has held that the High Court rightly pointed