Yashika Sandeep Budhrani vs Sandeep Baldev Budhrani

Gujarat High Court

Yashika Sandeep Budhrani vs Sandeep Baldev Budhrani on 20 February, 2025

                                                                                                                 NEUTRAL CITATION




                            C/SCA/15220/2019                                      ORDER DATED: 20/02/2025

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                             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/SPECIAL CIVIL APPLICATION NO. 15220 of 2019
                                                  With
                           CIVIL APPLICATION (FOR VACATING INTERIM RELIEF)
                                              NO. 1 of 2024
                            In R/SPECIAL CIVIL APPLICATION NO. 15220 of 2019
                      =============================================
                                          YASHIKA SANDEEP BUDHRANI & ORS.
                                                       Versus
                                             SANDEEP BALDEV BUDHRANI
                      =============================================
                      Appearance:
                      MR.ADITYA J PANDYA(6991) for the Petitioner(s) No. 1,2,3
                      NISHITH P ACHARYA(9308) for the Petitioner(s) No. 1,2,3
                      MR VIVEK V BHAMARE(6710) for the Respondent(s) No. 1
                      P V BRAHMBHATT(7659) for the Respondent(s) No. 1
                      =============================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 20/02/2025

                                                            ORAL ORDER

1. The present application is filed under Article 227 of the Constitution of India asking for the following reliefs:-

"(A) YOUR LORDSHIP be pleased to allow this petition and be pleased to quash and set aside the order dated 30.08.2019 passed below exhibit 14 in Summary Suit No. 6 of 2019 by the Id. 7th Addl. Senior Civil Judge, Vadodara and be further pleased to grant unconditional leave to the defendants to defend the Summary Suit No. 06 of 2019.

(B) During the pendency and till final disposal of this petition, YOUR LORDSHIP be pleased to stay the further proceedings of Summary Suit NO. 6 of 2019 pending before the Id. 7th Add. Senior Civil Judge, Vadodara.

(C) YOUR LORDSHIP be pleased to grant any other further remedy that may deem fit in the eyes of justice, equity and good conscience."

2. At the outset, learned advocate Mr. Vivek V. Bhamare appearing for the respondent No.1 - original plaintiff, under the Page 1 of 4 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:40:11 IST 2025 NEUTRAL CITATION C/SCA/15220/2019 ORDER DATED: 20/02/2025 undefined instructions of his client, states that the original plaintiff does not press the summon for judgment filed by the plaintiff below Exh.11 in Special Summary Suit No. 06 of 2019 pending before the Principal Senior Civil Judge, Vadodara.

3. In view of the above, the impugned order passed below Exh.40 in a leave to defend application filed by the defendant would not survive. The impugned order dated 30.08.2019 passed below Exh.14 by 7th Additional Senior Civil Judge, Vadodara in Special Summary Suit No.06 of 2019 is hereby quashed and set aside.

4. Now, the learned advocate Mr. Bhamare, at this stage, would further request this Court that in inadvertence and under the mistake and belief, the plaintiff had filed a summary suit before the civil court instead of filing such suit before the family court under the Family Courts Act, 1984.

5. So, the learned counsel Mr. Bhamare for the plaintiff submits that the plaintiff may be permitted to withdraw the Special Civil Suit No.06 of 2019 wrongly filed before the Civil Court, Vadodara with a liberty to file fresh suit before the family court concerned as per the provisions of the Family Courts Act, 1984 and further, requested that benefit of Section 40 of the Limitation Act, 1963 may also be granted in favour of the plaintiff.

6. Per contra, learned counsel Mr. Aditya J. Pandya appearing for the petitioner - defendant would state that it is open for the plaintiff to withdraw the summary suit filed by him and he may file an appropriate suit before the family court.

NEUTRAL CITATION C/SCA/15220/2019 ORDER DATED: 20/02/2025 undefined

7. Nevertheless, the learned counsel Mr. Pandya would submit that so far as the period of limitation is concerned in filing this fresh suit before the family court concerned, with prejudice to the rights and contentions to defend the applicability of Section 14 of the Limitation Act, 1963 to such fresh suit to be filed by the plaintiff / husband, an appropriate order may be passed by this Court.

8. After hearing the learned advocates for the respective parties, I am of the view that let the respondent - plaintiff herein may apply to the Civil Court, Vadodara for withdrawal of Special Summary Suit No. 06 of 2019 seeking a liberty to file fresh family suit before the family court as per the provisions of Family Courts Act, 1984.

9. If such an application is filed by the plaintiff before the Civil Court, it is requested to the Civil Court to grant such permission in the interest of justice as considering the nature of controversy involved in the suit and considering the provisions of Sections 7 and 8 of the Family Courts Act, 1984, a competent Court of law would be the family court and not the civil court to decide the nature of controversy involved in this suit.

10. Once such Special Summary Suit No.06 of 2019 will be withdrawn by the plaintiff, as aforesaid, it is open for the plaintiff to file necessary family suit before the competent family court as per the provisions of Family Courts Act, 1984 wherein, it is also open for the plaintiff to seek an exemption / condonation of delay in filing such suit by seeking a prayer to exclude the period as per Section 14 of the Limitations Act, 1963.

NEUTRAL CITATION C/SCA/15220/2019 ORDER DATED: 20/02/2025 undefined

11. If such prayer is made by the plaintiff / husband, after hearing the petitioner herein - wife, an appropriate order may be passed by the Family Court on such application in accordance with law.

12. It is made clear that this Court has neither gone into nor examined the merits of the suit and impugned order has been quashed and set aside as the original plaintiff has not pressed / withdrawn his summon for judgment.

13. Thus, in view of the aforesaid, the present petition is disposed of accordingly, with no order as to costs. In view of the disposal of the main matter, the connected civil application stands disposed of.

(MAULIK J.SHELAT,J) SAHIL S. RANGER Page 4 of 4 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:40:11 IST 2025