Sitaram Fabrication vs Italiya Silk Mill

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1477

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V. Anjaria, Sandeep N. Bhatt, JJ.
Sitaram Fabrication – Petitioner
Versus
Italiya Silk Mill – Respondent
R/Special Civil Application No. 6699 of 2022
Decided On : 08-12-2022

Advocates:
Advocate Appeared:
For the Petitioner: S M Kikani
For the Respondent: Mr. Jigar L Patel

Headnote:
Code of Civil Procedure, 1908 - Order XXXVII, Order XV-A Rule 8 - Right of evidence - Grant time and permit leading evidence - Application of petitioner seeking to reopen right of evidence was dismissed - Held, Court can impose cost on parties and permit departure from dates and schedule of case management - Non compliance of schedule can therefore be condoned by imposing cost - Right to lead evidence in suit proceedings is substantive and valuable right - In order to avail party right to lead evidence, there was nothing erroneous in altering schedule of dates fixed in case management schedule specially when legitimate cause subsisted - Case management time-table could be deviated if needs of substantive justice so demand, as was warranted in present case - Commercial court below could have certainly adopted course provided in Sub rule (a) of Rule 8 instead of sticking to Sub rule (b) - Approach of court was wooden and pedantic - Closure of right to evidence for parties could not have been routine or casual order - Closing right to lead evidence for parties in suit seriously prejudices such party - It was valid ground to be considered to grant time and permit leading of evidence to petitioner- Impugned orders stand illegal, liable to be set aside - Petition allowed.

JUDGMENT :

N.V.ANJARIA, J.

In the facts and circumstances of the case and having regard to the request and consent of the parties through their learned advocates, the petition was taken up for final consideration.

1.1 Rule, returnable forthwith. Learned advocate Mr.Jigar Patel waives service of rule for all the respondents.

1.2 Heard learned advocate Mr.S.M.Kikani for the petitioner and learned advocate for the respondents.

2. By filing this Special Civil Application, orders dated 2.3.2022 and 21.3.2022 below Exhibit 18 and 19 respectively passed by learned 3rd Additional Senior Civil Judge, Surat in Commercial Suit No.741 of 2021 are challenged. By order dated 2.3.2022, application of the petitioner- original plaintiff for adjournment was rejected and right to lead evidence in the suit was closed. By order dated 21.3.2022 below Exhibit 19, the application of the petitioner seeking to reopen the right of evidence was dismissed.

3. The Commercial Suit of the petitioner- plaintiff under Order XXXVII of the Code of Civil Procedure, 1908 was for recovery of Rs.39,35,559/-. The petitioner stated that he was engaged in the business of all sale clothes. The defendant purchased from the plaintiff the silk clothes between the period from 1.8.2017 to 10.12.2017 and had promised to make the payment towards the price. It was stated that the sale was effected by challans. The list of one hundred challans were given in para 2 of the plaint. Divided into eight different invoices the total sale was Rs.39,35,559/- which was sought to be recovered with interest.

3.1 It was the case of the plaintiff that under one or other pretext the defendant did not make payment and finally in March, 2018, the defendant closed their shop and eloped, pursuant to which the plaintiff filed police complaint on 20.7.2018 with Varachhchha Police Station, Surat and pursuant to which the Criminal Case No.60728 of 2018 is pending. It was stated that commercial pre-litigation mediation application has also been filed before the District Legal Authority as dues towards the price of the goods has not been paid towards the respondents.

3.2 The respondent appeared and filed written statement. On 5.1.2022 the case was listed for the case management herein under Order XV-A, CPC. The schedule of dates was fixed by the court for different stages in the suit. The issues appeared to be have been framed on the same day and suit was posted on 17.1.2022 for production of the evidence of the petitioner-plaintiff. Under the case management schedule, the respondents produced their evidence on 30.3.2022 and argument of both the sides were concluded by 20.4.2022.

3.3 It is the case of the plaintiff that on 5.1.2022, the proceedings were listed and case management was fixed as above, two days after on 7.1.2022, third wave of COVID-19 pandemic with cases of Omicron surged and the High Court issued Notification dated 7.1.2022 providing for functioning of the courts in the State by virtual mode and prohibiting the entry of lawyers and litigants in the court premises. It was stated that on 10.1.2022, the Supreme Court also passed order in Miscellaneous Civil Application No.21 of 2022 in Suo Motu Writ Petition (C) No.3 of 2020 with other applications, to extend the period of limitation in all the proceedings before the courts and tribunals till 28.2.2022.

3.4 When the suit proceedings were listed on 17.1.2022 and 1.2.2022, the parties could not connect in the virtual hearing, the case was adjourned to 2.3.2022 to be at the same stage, that is for production of evidence of the plaintiff. The COVID-19 situation prevented any leading of evidence, stated the plaintiff. He filed Exhibit 18 seeking adjournment but the same was rejected. The case was next posted on 21.3.2022 for production of evidence of the defendants. It is the case of the petitioner that the relevant documents which he needed for bearing evidence and which were before the criminal court in the Criminal Case mentioned above, could be obtain

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