{"id":112944,"date":"2010-08-17T00:00:00","date_gmt":"2010-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/videcon-vs-navbharat-on-17-august-2010"},"modified":"2017-02-28T00:44:39","modified_gmt":"2017-02-27T19:14:39","slug":"videcon-vs-navbharat-on-17-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/videcon-vs-navbharat-on-17-august-2010","title":{"rendered":"Videcon vs Navbharat on 17 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Videcon vs Navbharat on 17 August, 2010<\/div>\n
Author: C.K.Buch,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/9159\/2005\t 21\/ 21\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9159 of 2005\n \n\nwith\n \n\nCIVIL\n APPLICATION No. 4636 of  2005 \n\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE C.K.BUCH\n \n \n==============================================================\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\n \n==============================================================\n\n \n\nVIDECON\nNARMADA ELECTRONICS LTD & 1 - Petitioner(s)\n \n\nVersus\n \n\nNAVBHARAT\nFERRO ALLOYS LTD & 1 - Respondent(s)\n \n\n==============================================================\n \nAppearance\n: \nMR\nRK MISHRA for\nPetitioner(s) : 1 - 2. \nMR KM THAKAR WITH MISS ANAR PARIKH FOR M\/S\nTRIVEDI & GUPTA for Respondents.\n \n\n==================================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE C.K.BUCH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 07\/09\/2005 \n\n \n\nCOMMON\nORAL JUDGMENT<\/pre>\n
Heard
\n\tMr.R.K. Mishra, learned counsel appearing for the petitioners and
\n\tMr.K.M. Thakar, learned counsel appearing with Miss Anar Parikh,
\n\tlearned counsel on behalf of M\/s.Trivedi and Gupta  for  the
\n\trespondents.\n<\/p>\n
Invoking
\n\tjurisdiction of this Court under Article 227 of the Constitution of
\n\tIndia , the petitioners-orig.defendants of Special Civil Suit No.97
\n\tof 1997 have prayed that this Court should exercise powers and
\n\tshould quash and set aside the order dated 16th April,
\n\t2005, passed below Exh.103 by the ld.Civil Judge (S.D.) and permit
\n\tthe petitioners-orig.defendants  to submit their written statement
\n\tin the Suit pending with the Court. The application Exh. 103 was
\n\tsubmitted by the petitioners-orig.defendants stating that due to the
\n\tmistake committed, the petitioners could not submit their written
\n\tstatement and, therefore, they may be permitted to file their
\n\twritten statement. The mistake in the application has been explained
\n\tby way of an affidavit dated 01st October, 2003 of one
\n\tShantilal Ganeshbhai Prajapati, wherein the deponent has stated that
\n\the, being a clerk of the advocate of the concerned matter, has erred
\n\tin not submitting the written statement in the Suit i.e. Special
\n\tCivil Suit No.97 of 1997 and, therefore, it is the say of the
\n\tpresent petitioner that the ld.Civil Judge accepting the explanation
\n\tought to have extend the time to file the written statement and
\n\tought to have permitted the petitioners as the amount involved is
\n\tvery high and the dispute centres around number of controversial
\n\tissues and non-availability of written statement by the petitioners
\n\tmay cause serious prejudice to them. The Court has admitted this
\n\tpetition and after admission of the petition, the petitioners have
\n\tprayed by way of abovementioned Civil Application that till hearing
\n\tand disposal of the present petition, the proceedings of Special
\n\tCivil Suit may be stayed.  But as today, the Court has heard the
\n\tsubmissions of the learned counsel appearing for the parties in
\n\tdetail, both these proceedings i.e. Special Civil Application as
\n\twell as Civil Application are being disposed of by this common
\n\tjudgment and hence, this judgment.\n<\/p>\n
For
\n\tthe sake of brevity and convenience, I would like to quote main
\n\treliefs as prayed for in petition in paragraph no.8, which are as
\n\tunder :\n<\/p>\n
?S8(A)\tYour
\nLordships may be pleased to quash and set aside the order below
\nExh.103  passed in the Special Civil Suit No.97\/1997 vide
\nAnnexure-??D?? dated  16.4.2005 passed by the Second Joint Civil
\nJudge (S.D.), & J.M.F.C., Bharuch.\n<\/p>\n
8(B)\t\tYour
\nLordships may kindly be pleased to pass any other further order\/s as
\nare deemed fit, just and proper in the facts and circumstances of the
\ncase and in the interest of justice.??\n<\/p>\n
At
\n\tone point of time, Mr.R.K. Mishra, learned counsel appearing for the
\n\tpetitioners, has submitted that while permitting the present
\n\tpetitioners this Court may award exemplary costs against the present
\n\tpetitioners and the same may be even more than Rs.50,000\/-. But a
\n\tmistake committed by an advocate or his clerk should not result into
\n\tutter miscarriage of justice. Mr.R.K. Mishra has taken me through
\n\tthe order under challenge and the nature of dispute between the
\n\tparties; especially the decision in the case of Kailash
\n\tv. Nanhku and others<\/a>, reported in 2005 AIR SCW 2346.
\n\tMr.Mishra has taken me through the relevant paragraphs of the said
\n\tdecision and has read relevant head-notes ?SE??, ?SF??, ?SG??,
\n\t?SH??, ?SI??, ?SJ??, ?SK?? and ?SL?? of the cited decision
\n\tand has hammered that the embargo in Order 8 Rule 1 created by the
\n\tamended Code of Civil Procedure should not be construed as a
\n\tmandatory scheme and as observed by the Apex Court, it may be held
\n\tto be a directory in the background of the facts and circumstances
\n\tof the present case and the petitioners may be permitted to submit
\n\tthe written statement. The Apex Court in the decision of the Kailash
\n\t(supra) has summarized the conclusion in paragraph:46 of the
\n\tdecision.  I have carefully gone through the same.  With a view to
\n\tappreciate and elaborate the submissions made by Mr.R.K. Mishra, I
\n\twould like to reproduce certain portions of the order under
\n\tchallenge because while exercising the jurisdiction vested with the
\n\tCourt under Article 227 of the Constitution of India, the Court
\n\tshall have to reach to a finding that there is an element of either
\n\tperversity or patent illegality in the finding or if the finding is
\n\tnot reversed then gross injustice would be caused to a party
\n\tapproaching Court.  The ld.Civil Judge while rejecting the
\n\tapplication Exh.103 has narrated some details referring to the dates
\n\twhich are found relevant by him. I would like to reproduce some of
\n\tthe portion of the order under challenge, which reads as under :\n<\/p>\n
?S4.\t\tIf
\nwe read Exh.103 was filed on 10.9.2003. In this application only one
\nreason for not filing written statement has been given by the
\ndefendant and that is mistake (Sharat Chuk).  By what kind of mistake
\nwritten statement was not file within time that has not been
\nclarified by the defendant. Surprisingly, after filing this
\napplication at Exh.103 on 10.9.2003, an affidavit at Exh.107 dated
\n01.10.2003 I.e. after 20 days was produced on record. This affidavit
\nhas been sworn in by Shantilal Ganehsbhai Prajapati. It is declared
\nby him that he is Advocate’s clerk and earlier a written statement
\nwas filed on behalf of the Defendant Videocon Company in the another
\nsuit, but by misunderstanding it was filed in this suit and
\naccordingly due to his mistake and negligence the written statement
\nwas not filed. Further, he has stated that he has put note on the
\nbrief that written statement has been filed. This happens due to his
\nmistake and negligence and now came ot the knowledge of the Advocate,
\ntherefore, at present written statement has been filed. Now, if we
\ncompare the contentions of Exh.103 and 106, there is no consonance
\nbetween both. Nothing he has stated in application Exh.103 that
\nwritten statement was not filed due to the mistake and negligence of
\nthe Advocate’s clerk. Even no facts as to filing of written statement
\nof the other suit has been contended in this application. So, it
\nappears that after filing an application at Exh.103, this affidavit
\nwith a view to support the application has been filed by Shantilal
\nGaneshbhai Prajapati.  There is no statement in application whether
\nMr.Shantilal Ganeshbhai is registered clerk of an Advocate for the
\nDefendant Mr.R.D. Purohit. He has not produced his Identity Card or
\nhis registration certificate along with the affidavit…. .\n<\/p>\n
5.\t\t…\n<\/p>\n
Learned Advocate for the Defendants has placed reliance on 1984
\nSupreme Court, Page-41- Smt. Lachi Tewari and Others, Appellants V\/s
\nDirector of Land Records and Others, Respondents.  In this case, the
\npetition for restoration was rejected due to the absence of the
\npetitioner. It was held that under our present adversary legal
\nsystem, where the parties appear through their Advocates, the
\nobligation of the parties is to select his advocate, brief him, pay
\nthe fees demanded by him and then trust the Learned Advocate to do
\nthe rest of the things The party may be a villager or may belong to a
\nrural area and may have no knowledge of the Court’s procedure. After
\nengaging a lawyer, the party may remain supremely confident that the
\nlawyer will look after his interest.  In the case before me, the
\nParty is a Company. Even Company has Law Officer and they are looking
\nafter all the Legal proceeding on behalf of the Company.  Therefore,
\nhere in the case before me, the Defendant is not a villager or belong
\nto a rural area, or having no knowledge of the Court’s procedure.
\nFurther, in the case before me, the matter has not been dismissed in
\nabsence of the Advocate for the defendant. On the contrary, Learned
\nAdvocate for the defendant has already cross-examined the Plaintiff
\nas well as  Witness…..\n<\/p>\n
\tXXX\t\tXXX\t\tXXX\t\tXXX<\/p>\n
7.\t\t…\n<\/p>\n
In all the above referred judgments, it is held the right of filing
\nthe written statement has been forfeited after the first days of
\nhearing. The Defendant should not be permitted to earn premium on its
\nlethargic and insufficiency. The Court can not exercise its
\ndiscretion to allow the Defendant to file written statement who
\nfailed to show on sufficient ground for not filing written statement
\nwithin time and if the  Court come to the conclusion that final order
\nto be given for filing written statement, an amount claimed in the
\nsuit should be ordered to be deposited. Further, when the Defendant
\nhas got opportunity of cross-examination the plaintiff or his
\nwitnesses, he will not suffer any damage or no injustice caused to
\nhim. If we take in to consideration the ratio laid down in all above
\nreferred judgments, it becomes clear that there must be proper and
\nsufficient reason for not filing written statement in time. In the
\ncase before me, time to file written statement was already over
\nbefore 5 years. Thereafter also defendant has not produced his
\nwritten statement.  The plaintiff has produced oral evidence as well
\ndocumentary evidence in the suit. Therefore, now if  defendant
\npermitted to file written statement the Plaintiff will have no
\nopportunity to give evidence regarding contentions of the written
\nstatement.  In that circumstances, I do not think it proper to permit
\nto defendant to produce his written statement.  In the discussion
\nabove, I find no substance in the application, there is no sufficient
\nground for not filing written statement for such a long period of
\nmore than 5 years.\n<\/p>\n
8.\t\t…\n<\/p>\n
The question arise that whether the amended provision of Order-8,
\nRule-1 applied to the case before me?  This case was instituted in
\n1997 and amended provision has no retrospective effect, therefore, it
\nwill not be applied, considering the date of service of summons, but
\namended provisions of Order-8, Rule-1 become applicable to all Civil
\nSuits from 01.07.2002 and therefore, after that date no written
\nstatement can be filed after the lapse of statutory period. The Civil
\nCourt will have no discretion to permit such written statement to be
\ntaken on record filed after prescribed period.  In this view of the
\nmatter also the Court has no discretion to permit belated filing of
\nwritten statement i.e. after period fixed by the statute, 90 days.??\n<\/p>\n
Therefore,
\n\tit is difficult for this  Court to say that the application Exh.103
\n\thas been dismissed in a cryptic manner and without assigning
\n\tdetailed reasons. On the contrary, it emerges that the learned Judge
\n\thas considered all relevant aspects including one fact that the day
\n\ton which the right to file written statement was closed, newly
\n\tamended Rule 1 of Order 8 of the Code of Civil Procedure was not in
\n\toperation but after closure of the evidence of the plaintiff and
\n\tafter 01st July, 2002, the day on which the amended
\n\tprovision of Rule 1 of Order 8 of the Code of Civil Procedure came
\n\tinto operation, certain dates were granted to the defendant so that
\n\the can produce his side of evidence and thereafter, on 10th
\n\tSeptember, 2003, the application Exh.103 came to be filed and that
\n\ttoo with a small fake reason that the defendant should be permitted
\n\tto file written statement as because of some mistake, the
\n\tdefendant-company could not file written statement.\n<\/p>\n
The
\n\tsaid application Exh.103 does not disclose the name of the clerk who
\n\tcommitted mistake.  It is not even explained as to which is the
\n\tother suit in which the defendant-company had filed written
\n\tstatement by mistake. Even today Mr.R.K. Mishra was not able to
\n\tpoint out this aspect when specific query was raised during the
\n\tcourse of hearing. This Court cannot ignore the fact that an
\n\tadvocate gets up to cross-examine the plaintiff or its witnesses in
\n\ta contested matter involving huge amount, does not have a written
\n\tstatement in his hand. How an advocate for the defendant can
\n\tcross-examine the plaintiff unless he is aware about the stand of
\n\tthe plaintiff as party defendant.  So it will be difficult for this
\n\tCourt to believe that till September, 2003, the day on which the
\n\tmatter was to be argued finally as to the evidence of the
\n\tdefendant’s side  was ordered to be closed, the learned counsel for
\n\tthe defendant came to know that his clerk has committed mistake in
\n\tnot filing the written statement and has put a written endorsement
\n\ton the docket that the written statement has been filed in the
\n\tpresent suit i.e Special Civil Suit No.97 of 1997.  So this is a
\n\tcase, wherein the defendant is requesting this Court to permit him
\n\tto file a written statement under a falsehood. At this stage, I
\n\twould like to reproduce the relevant paragraph of the decision in
\n\tthe case of Kailash (supra) where the Apex Court has observed as
\n\tunder :\n<\/p>\n
?S41.\t\tOrdinarily,
\nthe time schedule prescribed by Order VIII, Rule 1 has to be
\nhonoured.  The defendant should be vigilant.  No sooner the writ of
\nsummons is served on him he should take <\/p>\n
steps
\nfor drafting his defence and filing the written statement on the
\nappointed date of hearing without waiting for the arrival of the date
\nappointed in the summons for his appearance in the Court.  The
\nextension of time sought for by the defendant from the court whether
\nwithin 30 days or 90 days, as the case may be, should not be granted
\njust as a matter of routine and merely for asking more so, when the
\nperiod of 90 days has expired.\n<\/p>\n
The
\nextension can be only by way of an exception and for reasons assigned
\nby the defendant and also recorded in writing by the Court to its
\nsatisfaction.  It must be spelled out that a departure from the time
\nschedule prescribed by Order VIII, Rule 1 of the Code was being
\nallowed to be made because the circumstances were exceptional,
\noccasioned by reasons beyond the control of the defendant and such
\nextension was required in the interest of justice, and grave
\ninjustice would be occasioned if the time was not extended.\n<\/p>\n
42.\t\tA
\nprayer seeking time beyond 90 days for filing the written statement
\nought to be made in writing.  In its judicial discretion exercised on
\nwell-settled parameters, the Court may indeed put the defendants on
\nterms including imposition of compensatory costs and may also insist
\non affidavit, medical certificate or other documentary evidence
\n(depending on the facts and circumstances of a given case) being
\nannexed with the application seeking extension of time so as to
\nconvince the Court that the prayer was founded on grounds which do
\nexist.\n<\/p>\n
43.\t\tThe
\nextension of time shall be only by way of exception and for reasons
\nto be recorded in writing, howsoever brief they may be, by the court.
\nIn no case, the defendant shall be permitted to seek extension of
\ntime when the court is satisfied that it is a case of laxity or gross
\nnegligence on the part of the defendant or his counsel.  The court
\nmay impose costs for dual purpose: (i) to deter the defendant from
\nseeking any extension of time just for asking and (ii) to compensate
\nthe plaintiff for the delay and inconvenience caused to him.\n<\/p>\n
44.\t\tHowever,
\nno straitjacket formula can be laid down except that the observance
\nof time schedule contemplated by Order VIII Rule 1 shall be the rule
\nand departure therefrom an exception, made for satisfactory reasons
\nonly.  We hold that Order VIII Rule 1, though couched in mandatory
\nform, is directory being a provision in the domain of processual
\nlaw.??\n<\/p>\n
The
\n\tsubmission advanced by Mr.Mishra that this Court by passing an order
\n\tto ditter the petitioner and to compensate plaintiff, can pass and
\n\tshould pass appropriate orders permitting the petitioner-defendant
\n\tto file written statement is not found sustainable because this is
\n\tnot a case of some delay caused in filing the written statement on
\n\taccount of no fault of the otherside.\n<\/p>\n
For
\n\tthe sake of argument if the say of Mr.Mishra is accepted then the
\n\timplied effect would be very serious and it may protract the hearing
\n\tof the Civil Suit which is pending since 1997.  I am told by the
\n\tlearned counsel appearing for respondent that after completion of
\n\tthe evidence of the plaintiff’s side, as the ld.Civil Judge was  not
\n\tdealing with the matter meticulously, the respondent-orig.plaintiff
\n\twas compelled to approach this Court by moving a petition i.e.
\n\tSpecial Civil Application No.13367 of 2005. It is submitted that
\n\tbecause of the orders passed by this Court in the said petition, the
\n\tld.Civil Judge started further proceedings.  Now if this Court
\n\tgrants permission to file a written statement, it may lead to
\n\trecasting of issues framed and some compulsion on the plaintiff to
\n\tlead evidence to meet with the issues that may be framed on account
\n\tof written statement that may be filed by the otherside and it also
\n\tshall automatically give right to the defendant to lead evidence
\n\tafter the closure of such right. The case before the Court in
\n\tKailash (supra) is a case of election and the delay was of only 05
\n\tdays after 90 days.  In the present case, there is no element of
\n\tviolation of principles of natural justice because the defendant in
\n\tthe present case with the reasons best known to the company has not
\n\tcared to even watch the proceedings of the Suit of a very huge
\n\tamount. Ultimately, the constituted attorney or authorised person
\n\tcould have informed the defendant-company that he has never been
\n\tcalled in the Suit to file written statement either by the advocate
\n\tor by the officer attending the legal matters in the Court of law.
\n\tThis Court even cannot ignore that the xerox copy of the written
\n\tstatement shown to the Court bears the date 10th
\n\tSeptember, 2003. So it would be difficult for this Court to accept
\n\tthat the same was ready and could not be tendered in time before the
\n\tCourt because of some mistake committed by the  clerk.\n<\/p>\n
In
\n\tview of above discussion and observations, it appears that the
\n\timpugned order passed by ld.Civil Judge below application Exh.103 is
\n\tabsolutely legal and no judicial review or interference is
\n\twarranted. The petition, therefore, is hereby dismissed and Civil
\n\tApplication praying for interim relief cannot survive and therefore,
\n\tthe same is also hereby dismissed.  The interim relief granted
\n\tearlier stands vacated so far as Civil Application is concerned.
\n\tRule is discharged in both the matters.\n<\/p>\n
(C.K.\n<\/p>\n
Buch, J)<\/p>\n
Aakar<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Videcon vs Navbharat on 17 August, 2010 Author: C.K.Buch,&Nbsp; Gujarat High Court Case Information System Print SCA\/9159\/2005 21\/ 21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9159 of 2005 with CIVIL APPLICATION No. 4636 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ============================================================== 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-112944","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nVidecon vs Navbharat on 17 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/videcon-vs-navbharat-on-17-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Videcon vs Navbharat on 17 August, 2010 - 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