C/SCA/5249/2022 ORDER DATED: 29/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5249 of 2022
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SHANKARLAL KACHARADAS PATEL
Versus
HEIRS OF DECD. SANKALCHAND ISHWARDAS PATEL
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Appearance:
MR HARDIK H PANDIT(5820) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
MR SK PATEL(654) for the Respondent(s) No. 2
MR. RAJAN J PATEL(6775) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 29/03/2023
ORAL ORDER
1. The present petition is filed by challenging the impugned judgment and order dated 20.09.2021 passed by the learned trial Court in the application of Special Civil Suit No.73, by which the present petitioners have prayed to decide the application filed on 15.03.2021 under Order VI Rule 17 before deciding the application filed on 21.09.2020 under Order VII Rule 11. The said application is rejected by the trial Court vide order dated 20.09.2021.
2.1 It transpires from the record that the present petitioners have filed the Special Civil Suit No.73 of Page 1 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023 C/SCA/5249/2022 ORDER DATED: 29/03/2023 2020 before the trial Court for specific declaration and injunction by challenging the registered sale deed dated 26.06.2020 in favour of respondent No.2. During the pendency of suit, the application under Order VII Rule 11 is filed on 21.09.2020. It further transpires from the record that application under Order VI Rule 17 is filed on 15.03.2021 by the petitioners before the trial Court to amend the prayers made in the plaint. Both the applications are pending for hearing. At that point of time, learned advocate for the petitioners has filed an application on 20.09.2021 by praying that the application filed on 15.03.2021 under the provisions of Order VI Rule 17 should be heard and decided before deciding the application filed under the provisions of Order VII Rule 11, which was filed prior to the filing of application under Order VI Rule 17 by the present petitioners. 2.2 That application, filed for seeking the prior hearing of Order VI Rule 17 application, is heard and rejected vide order dated 20.09.2021 by the trial Court. 2.3 Therefore, the present petition is filed. Page 2 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023
C/SCA/5249/2022 ORDER DATED: 29/03/2023 3.1 I have heard leaned advocate Mr. Hardik H. Pandit appearing for the petitioner. He has submitted that if the prayer for amendment made in the application of the plaint is not granted then, in future if the order is passed under Order VII Rule 11, which may passed against the interests of the petitioners as the trial Court may reject the plaint by exercising the power under Order VII Rule 11 and then if he files appeal and in appeal, if he gets success then it is very difficult for him to amend the plaint if the suit is restored to its original file.
3.2. The second submission made by learned advocate for the petitioner is that both the applications i.e. under Order VI Rule 17 as well as Order VII Rule 11 can be heard together.
4.1 The said first submission mentioned under paragraph 3.1 is prima facie not acceptable and untenable in the eyes of law. Such submissions, on only presumptions and assumptions, cannot be made otherwise if such submissions is accepted then no Court can pass the order and many interlocutory application may be Page 3 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023 C/SCA/5249/2022 ORDER DATED: 29/03/2023 filed.
4.2 Further, the Court has enquired with the learned advocates for the respondents, whether they are agreeable to this second submission mentioned under paragraph 3.2 but learned advocates appearing for the respondents have strongly objected the abovementioned second submission by saying that the submissions of defendants under Order VII Rule 11 application are heard, and thereafter, the plaintiffs have filed the application under Order VI Rule 17, and therefore, such suggestion, made by the petitioners cannot be accepted in addition to the contention already submitted.
5. Therefore, the matter is proceeded further on merits.
6.1 Learned advocate Mr. Hardik H. Pandit appearing for the petitioner has relied upon the decision of the Hon'ble Apex Court in the case of Jageshwari Devi Versus Shatrughan Ram reported in 2002 (0) GLHEL- SC-53692, wherein he has relied upon paras 2, 3 and 4, wherein the Hon'ble Apex Court has confirmed that order Page 4 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023 C/SCA/5249/2022 ORDER DATED: 29/03/2023 by allowing amendment in the facts and circumstances of that case. He has submitted that the facts of the present case are also similar to the above relied decision of the Hon'ble Apex Court and has submitted that either application under Order VI Rule 17 should be heard first or both the applications should be heard together and should be decided simultaneously by the trial Court. He has also relied upon the order of this Court in the case of Shaikh Juned Hajismailbhai Versus Haveliwala Shabbirhusain Mohammadbhai reported in Civil Revision Application No.165 of 2022 dated 22.03.2022 , and paragraph 2 of that order is relevant and has submitted that the amendment is required to be carried out first prior to hearing the application further, and therefore, he prays to allow this petition and appropriate order may be passed by considering the submissions. 6.2 He has also submitted that since it could be presumed that the pleadings are completed, and therefore, he prays to allow this petition 7.1 Per contra, learned advocate Mr. Rajan J. Patel appearing for respondent Nos.1.2 to 1.3 and learned Page 5 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023 C/SCA/5249/2022 ORDER DATED: 29/03/2023 advocate Mr. S.K. Patel appearing for respondent No.2 have strongly opposed the submissions made by learned advocate for the petitioner. They have drawn the attention of this Court towards the order passed by the trial Court. Both the learned advocates have further submitted that the order passed by the trial Court is just and proper and the trial Court has used his discretion, which is available and there is no such illegality or perversity in the order passed by the trial Court.
7.2 On merits also, they have submitted that considering the provisions of Order VII Rule 11 and Order VI Rule 17, it is desirable that the application filed under Order VII Rule 11 is required to be decided first. They have further submitted that in view of various judicial pronouncements, which the respondent Nos.1.1 to 1.3 have filed their affidavit-in-reply and those judgments are annexed with the reply and has submitted that all these judgments support the case of the respondents and is required to be considered appropriately, and therefore, the present petition deserves to be dismissed.
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C/SCA/5249/2022 ORDER DATED: 29/03/2023 7.3 They have relied upon the judgment of Co-ordinate Bench of this Court in the case of Mahendrasinh Jorubha Zala Versus Kantaben Shrikrishna Agrawal reported in AIR 2019 (NOC) 748 (GUJ.), and more particularly paragraphs 2, 3, 10, 11 & 12 are relevant and has submitted that once an application for rejection is filed, the Court has to dispose of the same before proceeding with the trial. They have also relied upon the judgment of Hon'ble Apex Court in the case of Grament Craft Versus Prakash Chand Goel reported in (2022) 4 SCC 181, and has submitted that in view of the judgment of the Hon'ble Apex Court, this Court should interfere in the discretionary order passed by the trial Court, which is very limited, under Article 227 of the Constitution of India, and therefore, the present petition deserves to be dismissed.
8.1 I have heard rival submissions of the respective parties. I have perused the application given by the petitioners at the trial Court. I have also gone through the order passed by the trial Court. I have also perused the averments made in the applications under Order VII Rule 11 and Order VI Rule 17.
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C/SCA/5249/2022 ORDER DATED: 29/03/2023 8.2 It is relevant to note that the application, which is filed under Order VI Rule 17, is subsequent to the application Order VII Rule 11. Application under Order VII Rule 11 is filed on 21.09.2020 and application under Order VI Rule 17 is filed on 15.03.2021, and thereafter, the present application in question is filed on 20.09.2021. It is also undisputed fact that on the date of filing of this application i.e. 20.09.2021, the arguments from the side of defendants were completed for the application filed under Order VII Rule 11. From the record also, it transpires that the present petitioners have also prayed before the trial Court to decided the application under Order VI Rule 17 prior to deciding the application under Order VII Rule 11. This conduct of the present petitioners also speaks about itself that this is nothing but to filling up lacuna in filing of the suit, more particularly, the averments made in the plaint. It also transpires that the petitioners are not ready and willing to proceed with the trial under the guise of filing of the present application with a view to protract the litigation and considering the observation made in the decision of Co-ordinate Bench of this Court in the case of Mahendrasinh Jorubha Zala (supra), more particularly Page 8 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023 C/SCA/5249/2022 ORDER DATED: 29/03/2023 relevant observation from paragraph 11 is as under:
..."But once an application for rejection is filed, the court has to disposed of the same before proceeding with the trial court..."
8.3 The above observation is derived after discussing the various decisions of the various Courts including the Hon'ble Apex and otherwise also, considering my limited scope, this Court finds no reasons to interfere in the impugned judgment and order dated 20.09.2021 passed by the learned trial Court in the application of Special Civil Suit No.73, and therefore, the present petition deserves to be dismissed.
8.4 The judgments cited at the Bar by learned advocate for the petitioners is not helpful in the matter and the facts of those cited judgments are different from the facts of the present case.
9. In view of above observation, the present petition is dismissed. Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 9 of 9 Downloaded on : Mon Apr 03 20:36:16 IST 2023