The judgment emphasizes the substantive right to lead evidence and the need for substantial justice, highlighting that procedural rules should not override the cause of substantial justice.

JUDGMENT :

J.C. DOSHI, J.

1. Rule returnable forthwith. Learned advocate Mr. Vibhuti Nanavati appears and waives service of notice of rule on behalf of the respondent.

2. In the facts and circumstances of the case and having regard to the request and consent of both learned advocates appearing for respective parties, this writ petition is taken up for final consideration.

3. By way of this writ petition filed under Articles 226 and 227 of the Constitution of India, 1950, the present writ petitioner has challenged the judgment and order dated 07.02.2023 passed below application Exh.49 by the learned Principal Senior Civil Judge, Kachchh in Commercial Civil Suit No. 49 of 2022. By the order dated 06.02.2023 passed below Exh.49, learned Principal Senior Civil Judge, Kachchh dismissed the application of the Org. Plaintiff seeking issuance of witness summon and also imposed a cost of Rs.25,000/- to be paid in District Legal Services Authority, Bhuj.

4. The brief facts of the present case are that petitioner Org. plaintiff i.e. Laxmi Enterprise is a partnership firm duly registered under the provisions of Partnership Act, engaged in the business of exporting food items to various countries. The petitioner-Org. plaintiff was intending to export Groundnuts Kernel to Philippines and for the purpose to secure risk, the petitioner-Org. plaintiff has purchased three different policies from the respondent dated 26.07.2021, 02.08.2021 and 10.08.2021.

4.1 The petitioner had exported groundnuts Kernel from Mundra Port to Manila North Port, Philippines through Cargo. When Cargo, containing Groundnuts Kernel, reached to Manila North Port, allegedly 380 bags of Groundnuts Kernel were found wet by Smith Bell Corporation, Philippines, as Liyods agents and thereafter, the survey was carried out. Subsequent thereto, the consignee of Cargo has rejected consignment to consider as total loss. The petitioner, having found rejection of consignment, filed/lodged the claim with one Mr. Prakash Thakkar, being a broker of the respondent. It has been informed that two were claims were accepted as non-standard basis at 20% deduction. However, third claim of petitioner-Org. Plaintiff was not accepted. This issue has been brought to the dispute by the petitioner-Org.Plaintiff by filing Commercial Civil Suit No. 49 of 2022 for recovery of money against respondent before the Commercial Court, Kachchh Bhuj.

4.2 In the aforenoted Commercial Civil Suit, the pleading were over, and thereafter, learned Principal Senior Civil Judge in Commercial Civil Suit, has passed an order below Exh.23 and scheduled the case management. This order was passed on 02.01.2023, wherein, it has been directed that Examination-in- Chief of the plaintiff’s witness and defendant’s witness to be filed on or before 06.02.2023.

4.3 The petitioner-Org. Plaintiff has filed an application for summoning the witness on 06.02.2023, stating various reason for delay in filling the application for summoning the witness Exh:49 , however, learned Principal Senior Civil Judge did not incline to accept the application and rejected the same with awarding the cost of Rs.25,000/-.

4.4 Hence, this petition at the instance of petitioner-Org. plaintiff.

5. Heard learned advocate Mr. Harshit S. Bhatt appearing for petitioner-Org. Plaintiff and learned advocate Mr. Vibhuti Nanavati representing the respondent-Org. Defendant.

6. According to learned advocate Mr. Harshit Bhatt, learned Principal Senior Civil Judge has taken pedantic and hyper technical approach in dismissing application below Exh.49. The petitioner Org. plaintiff has stated reason in Exh.49 for filing it delayedly. The petitioner-Org. plaintiff has categorically stated that father of the petitioner-Org.Plaintiff was not keeping well and as such petitioner-Org.Plaintiff could not adhere to the time limit stated in case management Exh.23. He would further submit that in view of case management schedule in Exh.23, the date at 06.02.2023 was fixed to produce the wit