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2022 DIGILAW 1720 (GUJ)

Sitaram Fabrication v. Italiya Silk Mill

2022-12-08

N.V.ANJARIA, SANDEEP N.BHATT

body2022
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. 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 obtained by him ; therefore on 21.3.2022, which was the next date in the suit, the plaintiff filed Exhibit 19 application praying to reopen right to evidence which was closed on 2.3.2022. 4. Learned advocate for the petitioner assailed the orders of the commercial court below dismissing application Exhibit 18 and 19 to submit that as the pandemic situation revived soon after 5.1.2022, it did not become possible for the plaintiff to lead evidence. 4. Learned advocate for the petitioner assailed the orders of the commercial court below dismissing application Exhibit 18 and 19 to submit that as the pandemic situation revived soon after 5.1.2022, it did not become possible for the plaintiff to lead evidence. The Circular of the High Court dated 7.1.2022 issued in the light of the then prevalent pandemic and the order of the Apex Court extending limitation period in the proceedings, were relied on. It was also submitted that as soon as the papers lying in the criminal proceedings became available, the application was made seeking to reopen the right to lead evidence which was done on immediate next date. It was submitted that the commercial court below disregarded the genuine reasons and adopted a harsh course under Order XV-A Rule 8, CPC to the prejudice of the petitioner. 4.1 On the other hand, on the basis of the contents and contentions in the affidavit-in-reply of the respondents, learned advocate for the respondents, submitted that the time schedule was fixed by the court below under the case management process and that the plaintiff was well aware of the date on the date of which the evidence was to be led and supplied. It was submitted that no mistake was committed by the court in rejecting the applications Exhibit 18 and 19. It was submitted that the excuse was put forth about non availability of material to lead the evidence and that the pendency of the criminal case was known to the plaintiff when the suit was instituted. 5. From Exhibit 18 application, copy of which figures on record, it could be seen that the plaintiff prayed for time on the ground that the judicial work was closed due to pandemic and that the plaintiff was required to gather the material from the criminal court which was difficult. The court reasoned that case management schedule was fixed and that it was the court proceedings which was closed due to corona pandemic and it was permissible for the parties to go for the court, therefore the plaintiff would have collected the material. 5.1 In application Exhibit 19 filed on 21.3.2022, the plaintiff requested the court to reopen the right to lead evidence stating inter alia that he had got the relevant material which he could not produce on 2.3.2022. 5.1 In application Exhibit 19 filed on 21.3.2022, the plaintiff requested the court to reopen the right to lead evidence stating inter alia that he had got the relevant material which he could not produce on 2.3.2022. The commercial court below again rested to refuse the request of the plaintiff stating that the case management herein the plaintiff was to submit his evidence on or before 15.2.2022, consequentially dismissing application Exhibit 19. 5.2 Rojkaam of the suit proceedings produced on the record of the petition indicates in fortification of the case put forth by the petitioner- plaintiff that on 5.1.2022 case management hearing took place and the proceedings were adjourned to 17.1.2022 for the purpose of evidence of the plaintiff. The situation which arose due to corona pandemic in its first and second wave is a circumstance of which judicial notice could be taken. There is no gainsaying that the High Court by issuing Circular dated 7.1.2022 prohibited the judicial functioning in the district level judiciary and the lawyers and litigants were also not permitted entry. It is also not disputable that the criminal case was pending and the documents of challans etc. needed to lead evidence were in the criminal court and the plaintiff pleaded non- availability thereof to be unable to lead evidence. 5.3 In dismissing the prayer of the plaintiff to grant adjournment at the first instance and thereafter in refusing to reopen the right to evidence, the commercial court below overlooked and disregarded valid and genuine reasons which had prevented the petitioner-plaintiff. The commercial court below could not have turned its eye blind to the pandemic situation and the factum of affairs going standstill in the society in general and in the judicial functioning in particular. 5.4 Order XV-A, CPC, under the title ‘Case Management Hearing’ enjoins the court in commercial suit to hold the case management hearing within four weeks from the date of filing of affidavit of admission or denial of documents by the parties to and that the court is required to pass the order regarding the time-table in respect of different stages starting from framing of issues as per the provisions incorporated. Rule 8 is about ‘Consequences of Non-compliance With Orders’ regarding case management’, which reads as under, “Rule. 8- Consequences of non-compliance with orders. Rule 8 is about ‘Consequences of Non-compliance With Orders’ regarding case management’, which reads as under, “Rule. 8- Consequences of non-compliance with orders. — Where any party fails to comply with the order of the Court passed in a Case Management Hearing, the Court shall have the power to— (a) condone such non-compliance by payment of costs to the Court; (b) foreclose the non-compliant party’s right to file affidavits, conduct cross-examination of witnesses, file written submissions, address oral arguments or make further arguments in the trial, as the case may be, or (c) dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and the imposition of costs is not adequate to ensure compliance.” 5.5 It is therefore clear that the court can impose the cost on parties and permit departure from the dates and the schedule of case management. Non compliance of the schedule can therefore be condoned by imposing cost. Before adverting to the powers mentioned in clause (b) and (c) above of foreclosing the right of the parties, to dismiss the plaint on the count of failure, it would be judicious approach to take recourse of clause (a) in larger interest of justice unless the facts regarding breach of the schedule are grave and stark. 5.6 The case management schedule was procedural aspect. At the altar of procedure substantive rights of the parties could not be sacrificed. Right to lead evidence in the suit proceedings is substantive and valuable right. In order to avail the party right to lead evidence, there was nothing erroneous in altering schedule of dates fixed in the case management schedule specially when legitimate cause subsisted. The case management time-table could be deviated if the needs of substantive justice so demand, as was warranted in the present case. 5.7 In the facts and circumstances obtained, the commercial court below could have certainly adopted the course provided in Sub rule (a) of Rule 8 instead of sticking to Sub rule (b). The approach of the court was wooden and pedantic. Closure of right to evidence for the parties could not have been routine or casual order. Closing right to lead evidence for the parties in the suit seriously prejudices such party. In the present case it was valid ground to be considered to grant the time and permit leading of evidence to the petitioner- plaintiff. 6. Closure of right to evidence for the parties could not have been routine or casual order. Closing right to lead evidence for the parties in the suit seriously prejudices such party. In the present case it was valid ground to be considered to grant the time and permit leading of evidence to the petitioner- plaintiff. 6. For all the reasons and discussion, the impugned orders stand illegal, liable to be set aside. Resultantly, order dated 2.3.2022 below application Exhibit 18 as well as order dated 21.3.2022 below Exhibit 19 in Commercial Civil Suit No.741 of 2022 passed by learned 3rd Additional Senior Civil Judge, Surat are hereby set aside. The right for the petitioner- plaintiff to lead the evidence in the suit shall be reopened and reasonable time should be granted to the petitioner for the said purpose upon payment of cost Rs.2,000/-, by the commercial court below, which shall thereafter proceed in the suit in accordance with law. 7. The petition is allowed. Rule is made absolute accordingly.