Relish Pharmaceuticals Ltd. vs Kamleshbhai Ravjibhai Kevat Thropoa Suresh G. Patel

J.B. Pardiwala, J.—As common questions of facts and law are involved in the Appeals, all the four Appeals are disposed of by this common judgment.

The Appellant - original Petitioner has preferred the Appeals challenging the common judgment and order passed by the learned Single Judge dated 4th February 2011 in Special Civil Application Nos. 639/2011 to 642/2011, whereby the learned Single Judge has rejected all the four petitions.

Facts relevant for the purpose of deciding these Appeals can be summarised as under:

Four summary suits under the provisions of Order 37 of CPC came to be filed in the Court of learned Civil Judge (S.D.) at Mehsana against the Appellant for recovery of requisite amount due and payable to the original Plaintiffs.

It appears that on receipt of the summons issued by the Civil Court in each of the suits, the Appellant - original Defendant appeared through his advocate.

It appears that instead of filing appropriate application for leave to defend, the Appellant kept on taking adjournments. As no application was preferred by the Appellant for leave to defend, the right of the Appellant to pray for leave to defend was closed by the learned Civil Judge.

It deserves to be noted that the suits were filed in the year 2002 and the right of the Appellant to file appropriate application for leave to defend was closed in the year 2003. The record reveals that on 14th October 2004, the Civil Judge (S.D.), Gandhinagar, camp at Kalol, allowed the suits and passed decree for recovery of the requisite amount due and payable by the Appellant to each of the Plaintiffs.

In the year 2008, the original Plaintiffs preferred execution applications. Notices were issued to the Appellant and at that point of time the Appellant realized that the summary suits which were preferred against him have been decreed and the respective Plaintiffs have preferred execution applications for recovery of the decreetal amount. The Appellant, therefore, preferred application under Order 37, Rule 4 of the CPC to set-aside the decree and grant him leave to defend the suit. However, in preferring this application under Order 37, Rule 4 of the CPC , there was delay as the application under Order 37, Rule 4 of the CPC has to be preferred within three years as provided under Article 137 of the Limitation Act. Therefore, the Appellant preferred applications for condonation of delay in each of the summary suits.

The learned Principal Senior Civil Judge, Kalol adjudicated the applications and rejected the applications holding that no sufficient cause has been made out by the Appellant for condonation of delay in preferring the application under Order 37, Rule 4 of the CPC .

This orders passed by the Principal Senior Civil Judge, Kalol were made subject matter of challenge before the learned Single Judge by filing respective Special Civil Applications. The learned Single Judge, vide common order dated 4th February 2011, rejected all the petitions. The learned Single Judge, while rejecting the petitions, came to the conclusion that the Civil Judge has rightly refused to exercise its discretion in favour of the Appellant praying for condonation of delay. The learned Single Judge took notice of the fact that it was not possible to believe that the suits which were decreed in the year 2004 came to the notice of the Appellant only in the year 2008. The learned Single Judge held that he was in complete agreement with the reasonings adopted by the Civil Judge.

The order passed by the learned Single Judge is now being assailed in these Appeals invoking Clause 15 of the Letters Patent.

We have heard learned Counsel Mr. J.A. Adesara for the Appellants.

At the outset, we expressed our doubts as regards maintainability of the Appeals under Clause 15 of the Letters Patent as the learned Single Judge appears to have passed orders under Article 227 of the Constitution of India arising out of proceedings in summary suits.

It is evident from the pleadings in the writ petitions itself that the Appellant - original Petitioner invoked supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. This is also evident from the cause-title itself of the petitions. We have also perused the relief clause of the petitions and in the prayer clause the Appellant has not prayed for any writ much less writ of certiorari under Article 226 of the Constitution of India. The simple prayer in the writ petitions is to quash and set-aside the order passed by the Principal Senior Civil Judge, Kalol. We have also perused the order passed by the learned Single Judge. It is very much evident from the order passed by the learned Single Judge that the power which the learned Single Judge exercised while rejecting the petitions was supervisory in nature under Article 227 of the Constitution of India.

Having regard to the pleadings in the original writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given the jurisdictional prospective in the constitutional context, there is no element of doubt that these Appeals are not maintainable under Clause 15 of the Letters Patent.

The Appeals fail on the issue of maintainability and they are all ordered to be dismissed by this common judgment and order. The Appeals stand dismissed with no order as to cost.