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2021 Supreme(Guj) 956
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Seemaben Tulsibhai Khatri – Appellant
Versus
Vyomesh M Shah – Respondent
R/Special Civil Application No. 13138 of 2014
Decided on : 25-10-2021
Advocate Appeared:
For the Appellant : MR MA BUKHARI
For the Respondent: MR ANKIT SHAH, MR AMIT SOLIYA FOR MR. JAY S SHAH, Adv
Point of Law - Order 9 Rule 13 also provides that if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against the defendant upon such as to costs, payment into Court or otherwise as it thinks fit.
Headnote:
Code of Civil Procedure, 1908 - Order 9 Rule 13 - Order 43 Rule 1(d) – Petitioner approached respondent for operation of family planning due to pain in stomach and she contacted and she came to know that she was pregnant.
Findings of the Court - Defendant was prevented for further cross-examination of plaintiff for reasons as discussed above before trial court in Special Civil Suit preferred by original plaintiff - Rojkam of suit also supports contents of defendant as no certain dates adjourning suit were shown in rojmam - Written arguments submitted by plaintiff and application were not disclosed in rojkam of Special Civil Suit - It is not in dispute that District Court, Patan was shifted to new premises and dates were not available on record - Suddenly, when matter was not on board or date of matter was not fixed on that day, written arguments were submitted by plaintiff, which was taken on record vide and application was also taken on record vide - Trial court passed an order of next date - All these aspects are considered by Trial Court while allowing application preferred by defendant under Order 9 Rule 13 of Code.
Result - Petition dispose of
ORDER :
1. The petitioner, who is the original plaintiff in Special Civil Suit No. 29 of 2005, has challenged the judgment and order dated 28.04.2014 passed in Misc. Civil application No. 48 of 2009.
2. Short facts may be referred as under:
3. The petitioner approached the respondent for operation of family planning due to pain in stomach on 08.01.2002 and she contacted Dr. R.G. Patel of Dharti Hospital and she came to know that she was pregnant. Other Dr. Vandanaben Amin of ‘Multi Maternity Nursing Home’ terminated her pregnancy. She made complaint to Dr. Vandanaben Amin on 28th January 2004, as she had problem in her intestine. On 2nd April 2004, present petitioner was operated through “Laparoscopy’ system by Dr.Vyomesh Shah but her pain was not reduced. The respondent is having Gynec degree even though he acted as surgeon and removed intestine. The respondent doctor wrongly operated the plaintiff and caused negligent manner, and therefore, plaintiff suffered a lot and filed Special Civil Suit No. 29 of 2005 before the court of learned Principal Senior Civil Judge, Patan for the negligent and wrong act of the respondent. The learned Principal Senior Civil Judge, vide order dated 5th November 2009, partly allowed the suit and passed a decree against the respondent to pay Rs. 25,48,000/- with 6% interest from the date of the suit. The respondent/defendant filed MCA No. 48 of 2009 under Order 9 Rule 13 of the Code for setting aside the ex-parte decree. Learned Trial Court, vide order dated 28th April 2014, set aside the decree with cost of Rs. 25,000/-. The present petitioner has challenged the impugned order passed by the trial Court in MCA No. 48 of 2009 by Misc. Application No.0 of 2014 under Order 43 Rule 1(d) of CPC with application of delay of 66 days. Learned District Judge, Patan opined that the said appeal is not maintainable. Hence, it was withdrawn on 21.08.2014.
4. Heard learned advocates for the respective parties. It was submitted by learned advocate for the petitioner/plaintiff that the trial court has not verified the record of the Special Civil Suit No. 29 of 2005 as the defendant was duly served with a summons and appeared in the proceedings by filing his written statement vide Exhibit 19 on 6th February 2013. It was further submitted that examination in chief on affidavit was filed by the plaintiff vide Ex. 37 on 8th October 2008 and advocate for the respondent/defendant made cross examination of the plaintiff. That thereafter, case was further adjourned on 20th April 2009, 21st September 2009, 7th October 2009, 11th October 2009 and 20th October 2009 for further cross-examination of the plaintiff, but no cross examination was made by the learned advocate appearing for the respondent/defendant. Hence, closing purshish was filed by the plaintiff on 9th November 2009. That, application Ex. 51 was filed by the plaintiff closing the right of the defendant which was allowed and right of recording evidence of the defendant was closed on 17th November 2009. That written arguments was produced by the plaintiff vide Ex. 52 on 21st November 2009 and judgment was delivered on 28th April 2014 in Special Civil Suit No. 29 of 1985. It was further submitted that opportunity to cross examine of the plaintiff was given to the defendant and case was adjourned time to time but the defendant failed to cross examine the plaintiff, and therefore, his right was closed for further evidence and ex-parte judgment was passed.
5. It is further argued that as trial court has committed an error in allowing application filed under Order 9 Rule 13 of the Code as defendant was given full opportunity to defend his case as the summons was duly served to him in the suit. Hence, it was requested by learned advocate for the petitioner to quash and set aside the impugned judgment and order passed in MCA No. 48 of 2009 dated 28th April 2014, setting aside the decree passed in Special Civil suit No.29 of 2005.
6. Learned advocate for the respondent has su
