Gujarat High Court
Hiraben Wd/O Ishwarbhai Nathabhai ... vs Nandaben Wd/O Amarsinh Motibhai Parmar on 25 April, 2025
NEUTRAL CITATION
C/SCA/5059/2025 ORDER DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5059 of 2025
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HIRABEN WD/O ISHWARBHAI NATHABHAI PATEL (DELETED VIDE
ORDER DATED 16.10.2018 VIDE EXH. 141) & ANR.
Versus
NANDABEN WD/O AMARSINH MOTIBHAI PARMAR & ORS.
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Appearance:
MR. JAY M THAKKAR(6677) for the Petitioner(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/04/2025
ORAL ORDER
1. Learned advocate Mr.Jay M. Thakkar tenders a draft amendment. The amendment is taken on record and it is hereby allowed and to be carried out forthwith by the petitioners.
2. Learned advocate Mr. Thakker has also submitted that an additional affidavit of the petitioners dated 24.04.2025 whereby it has been contended that apropos to the order impugned in the present writ application, the petitioners have submitted an application below Exhibit 199 on 23.04.2025 in the Special Civil Suit No.109 of 2000 before the Trial Court, Page 1 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025 NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined thereby, the Trial Court was requested to draw the decree as it has dismissed the suit on merits as well. 2.1. Learned advocate Mr. Thakker would submit that Trial Court vide its order dated 23.04.2025 has rejected such application of petitioners, thereby refused to draw the decree, and in that situation, petitioners would not be in a position to prefer an appeal. Initially, the present writ application is filed seeking following relief:-
"a. YOUR LORDSHIPS may be pleased to admit and allow the present Special Civil Application;
b. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby be pleased to quash and set aside the impugned order dated 20.03.2025 passed below Exh.1, 190 & 193 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No. 109/2000 (Annexure 'A') and thereby be pleased to reject the application vide exh.190 and allow the application vide exh. 193, in the interest of justice;
c. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby be pleased to quash and set aside the impugned order dated 12.01.2023 passed below Exh.172 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No. 109/2000 (Annexure 'B') and further be pleased to allow application below Exh. 172, in interest of justice;
d. Pending hearing and final disposal of present Application, YOUR LORDSHIPS may be pleased to stay the effect, implementation and execution of the impugned order dated 20.03.2025 passed below Exh.1, 190 & 193 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No. Page 2 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025 NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined 109/2000, in interest of justice;
e. By way of ad-interim relief, YOUR LORDSHIPS may be pleased to extend the relief granted vide order dated 21.03.2025 in an application below exh. 196 by learned Principal Senior Civil Judge & Additional Chief Judicial magistrate, Anand (Annexure - 'J'), in the interest of justice;
f. YOUR LORDSHIPS may be pleased to grant any other and further relief(s) as this Hon'ble Court deems fit and proper, in the interest of justice."
2.2. Thereafter, during the pendency of the present writ application, the Trial Court appears to have passed an order on 23.04.2025 below Exhibit 199 which is also sought to be challenged by way of draft amendment which is today allowed by this Court.
2.3. Learned counsel Mr. Thakker, under the instruction of his clients, would not pass the present writ application. So far as prayers made in original writ application being para 15a to f but restricting the writ application so far as para 14-CC. 2.4. Learned advocate Mr. Thakker would also seek liberty of this Court to permit the petitioners to challenge the order dated 20.03.2025 passed by the Trial Court below Exhibit 1 read with Exhibit 191 and 193 by way of substantive regular Page 3 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025 NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined civil appeal as well as the order dated 20.01.2023 passed below Exhibit 172 by the Trial Court before the Appellate Court.
3. The permission, as sought for, is hereby granted. It is open for the petitioner to challenge the aforesaid order before the Appellate Court by way of substantive Regular Civil Appeal as available under Section 96 read with Order XLI of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC").
4. Now, the present writ application is confined to the order dated 23.04.2025 passed by the Trial Court, thereby it refused to draw the decree. It is deplorable state of affair on the part of Trial Court not to draw the decree when it has dismissed the suit on merits as observed in the impugned order dated 23.04.2025 impugned in the writ application. It is worth to reproduce a cryptic order passed by the Trial Court below Exhibit 199 which reads as under:-
"Heard Shree P.P. Patel Ld. Advocate for Plaintiff. Plaintiff in original Special Civil Suit No.109/2000 has Page 4 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025 NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined preferred the present application. Perused the application. Special Civil Suit No.109/2000 has been dismissed by passing the order on merits below exhibits-1, 190 & 193 on 20.03.2025. So, the present application can not be entertained, accordingly disposed of. Order accordingly."
5. It is incumbent upon the Trial Court to draw decree once it decides the suits on merits and passed the judgment. It is worth to note two provisions of CPC, which cast such duty upon the Trial Court, i.e., Section 33 read with Order 20 Rule 6-A of CPC, which reads as under:-
"33. Judgment and decree.--The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.
ORDER XX Judgment and decree [6A. Preparation of decree.--(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose."
6. Thus, we have much dwell into the matter and this Court can only observe the Trial Court failed in its duty to draw decree once it dismissed the suit on merits. Page 5 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025
NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined
7. Thus, in view of the aforesaid facts and the provision of law, it is clear like a day that the impugned order dated 23.04.2025 passed below Exhibit 199 in Special Civil Suit no.109 of 2000 by the Principal Senior Civil Judge, Anand, is hereby quashed and set aside. Consequently, the Trial Court is hereby directed draw decree within a week from the date of receipt of copy of this order.
8. In view of the aforesaid observation, discussion and reasons, the present writ application is hereby partly allowed to the aforesaid extent and also reserving the liberty in favour of the petitioner as discussed aforesaid.
9. It is made clear that this Court has neither gone into nor examined the merits of the order dated 20.03.2025 as well as 12.01.2023 passed by the Trial Court in the suit.
10. This Court is conscious that this order is passed without hearing the respondents, but considering the fact that Trial Court has failed in its duty to draw the decree, which ought to Page 6 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025 NEUTRAL CITATION C/SCA/5059/2025 ORDER DATED: 25/04/2025 undefined have been done and for such inaction on the part of Trial Court, unnecessarily, parties should not require to travel up to this Court, such orders is passed without issuing notice to the respondents.
11. Nonetheless, it is hereby observed that if respondents are aggrieved by this order i.e., directing the Trial Court to draw the decree, it is open for them to file appropriate application in the present writ application within 15 days from the date of receipt of copy of this order.
Direct service is permitted.
(MAULIK J.SHELAT,J) MOHD MONIS Page 7 of 7 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 23:36:59 IST 2025