SCA/23496/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23496 of 2006 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? ========================================================= PIONEER BALL BEARING & ENGINEERING COMPANY - Petitioner(s) Versus GUJARAT STATE ELECTRICITY CORPORATION LIMITED - Respondent(s) ========================================================= Appearance : Mrs. SANGEETA PAHWA for M/S THAKKAR ASSOC. for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MS JAISHREE HINGORANI FOR MS.LILU K BHAYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India the petitioner – original plaintiff has prayed for an appropriate Writ, SCA/23496/2006 2/6 JUDGMENT direction and/or order quashing and setting aside the impugned order dated 23.08.2006 passed by the learned Principal Senior Civil Judge, Vadodara in Delay Application No.205 of 2005 in Special Civil Suit No.98 of 2001 by which the learned trial Court has allowed the said application condoning delay in filing application to set aside ex-parte judgment and decree passed under Order IX Rule 13 of the Code of Civil Procedure and restore Special Civil Suit No.98 of 2001. 2. The petitioner – original plaintiff had instituted Special Civil Suit No.98 of 2001 against the respondent – Gujarat State Electricity Board for recovery of Rs.31,71,137.10 paise. It appears that ex-parte decree came to be passed by the learned trial Court in the month of April, 2004 and that thereafter, respondent herein – original defendant submitted application to set aside the ex-parte judgment under Order IX Rule 13 of the Code of Civil Procedure on 20.12.2005 and as there was delay in preferring Application for setting aside ex-parte decree, respondent submitted delay condonation application No.205 of 2005 requesting to condone delay in preferring application under Order IX Rule 13 of the Code of Civil Procedure. The learned trail Court by impugned order has allowed the said application condoning the delay in preferring the application under Order IX Rule 13 of the Code of Civil Procedure by observing that sufficient cause should be construed liberally and meritorious case SCA/23496/2006 3/6 JUDGMENT should not be thrown away on technical ground of delay and the Court should not take hyper technical view while deciding the issue of condonation of delay. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 23.08.2006 passed in Delay Application No.205 of 2005, the petitioner – original plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Ms.Sangeeta Pahwa, learned Advocate appearing on behalf of the petitioner – original plaintiff has vehemently submitted that the learned trial Court has committed error in condoning delay in preferring the application under Order IX Rule 13 of the Code of Civil Procedure. It is submitted that impugned order is absolutely unreasonable and unjust in as much as even though there is no explanation submitted by the respondent to the fact that despite the service of summons upon the respondent, the respondent chose not to appear before the learned trial Court and contest the suit. Therefore, it is submitted that there is no just reason for the learned trial Court to condone the delay. It is submitted that inspite of summons duly served upon the respondent, they did not appear and therefore, the learned trial Court was justified in passing ex- parte decree and therefore, the learned trial Court has committed error in condoning delay in preferring the application under Order IX Rule 13 of the Code of Civil Procedure. Ms.Pahwa, learned Advocate for the SCA/23496/2006 4/6 JUDGMENT petitioner has heavily relied upon the decision of the Division Bench of this Court in the case Bharti v/s.R.S.Shukla, Presiding Officer, Ahmedabad reported in 1981 GLH 89 and it is submitted that as observed by the Division Bench of this Court when there is likelihood of injustice, the expression “good cause” must be strictly construed and delay must not be condoned for the jurisdiction is exercised for doing justice and not for doing injustice by condoning delay. It is further submitted that even the learned trial Court while condoning the delay ought to have imposed costs upon the respondent as there is negligence on the part of the respondent. Making above submissions, it is requested to present Special Civil Application. 4. While opposing present Special Civil Application, Ms.Jaishree Hingorani, learned Advocate for Ms.Lilu Bhaya, learned Advocate for the respondent has submitted that in the facts and circumstances of the case, the learned trial Court has exercised discretion judiciously and condoned delay by observing that meritorious case should not be thrown away on technical ground of delay and same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Therefore, it is requested to dismiss present Special Civil Application. 5. Heard the learned Advocates appearing on behalf of the respective parties. SCA/23496/2006 5/6 JUDGMENT 6. At the outset, it is required to be noted that this is a petition under Article 227 of the Constitution of India and unless it is found that there is jurisdictional error and when discretionary order is passed exercising judiciously, the Court may not interfere with the order passed by the learned trial Court. In the present case, ex-parte judgment and decree came to be passed for recovery of Rs.31,71,187.10 paise. Having come know about the ex- parte judgment and decree, immediately the respondent submitted application for getting certified copy and immediately thereafter, the application under Order IX Rule 13 came to be filed. The learned trial Court condoned delay in preferring the application under Order IX Rule 13 of the Code of Civil Procedure by observing that normally word sufficient cause should be construed liberally so as to advance substantial justice and meritorious case should not be thrown out on the technical ground of delay. Thus, it cannot be said that the learned trial Court has not exercised discretion judiciously and/or impugned order passed by the learned trial Court is without jurisdiction. However, it appears that the learned trial Court could have imposed costs upon the respondent while condoning the delay. Therefore, it appears to the Court that if reasonable costs is awarded to the petitioner – original plaintiff while condoning the delay and confirming the impugned order passed by the learned trial Court, it will meet the ends of justice. SCA/23496/2006 6/6 JUDGMENT 7. For the reasons stated above, present Special Civil Application is partly allowed by modifying the impugned order dated 23.08.2006 passed by the learned Principal Senior Civil Judge, Vadodara below Exh.1 in Delay Application No.205 of 2005 to the extent that while allowing the said application respondent herein is directed to pay costs for condoning delay which is quantified at Rs.7500/- (Rupees Seven Thousand and Five Hundred only), which the respondent herein is directed to deposit with the learned trial Court within a period of 6(six) weeks and on such deposit, the petitioner – original plaintiff is permitted to withdraw the same. Only on such deposit the learned trial Court to proceed further with the matter under Order IX Rule 13 of the Code of Civil Procedure. Rule is made absolute to the aforesaid extent. No order as to costs. [M.R.Shah,J.] satish