Valjibhai Zaverbhai Lathia vs Giriraj Bharatkumar Randeria

Gujarat High Court

Valjibhai Zaverbhai Lathia vs Giriraj Bharatkumar Randeria on 22 July, 2025

                                                                                                         NEUTRAL CITATION




                               C/SCA/6429/2016                            ORDER DATED: 22/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 6429 of 2016

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                                                  VALJIBHAI ZAVERBHAI LATHIA
                                                             Versus
                                            GIRIRAJ BHARATKUMAR RANDERIA & ORS.
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                        Appearance:
                        MR ABHISHEK M MEHTA(3469) for the Petitioner(s) No. 1
                        ADVOCATE NOTICE SERVED for the Respondent(s) No. 1
                        APPEARANCE WITHDRAWN for the Respondent(s) No. 4
                        MR N P CHAUDHARY(3980) for the Respondent(s) No. 2,3
                        ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                      Date : 22/07/2025

                                                       ORAL ORDER

1. Heard learned advocate Mr. Abhishek M. Mehta for the petitioner and learned advocate Mr. N. P. Chaudhary for respondents No. 2 & 3.

2. Though served, none appears for respondent No.1. Initially respondent No.4 was appeared through learned Advocate who retired from the matter and thereafter advocate notice was served upon respondent No.4 but she chosen not to appear. The matter is taken up for hearing.

3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-

NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined "(A) Your Lordships may kindly be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ in the nature of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 28.12.2015 below Exh. 393 in Regular Civil Suit No.68 of 2007;

(C) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct, by way of interim relief, staying the operation and implementation of the impugned order dated 28.12.2015 below Exh.393 in Regular Civil Suit No.68 of 2007 and be pleased to further direct the Ld. Judge not to proceed with the further hearing of the Regular Civil Suit No.68 of 2007;

(D) Your Lordships may be pleased to grant ad interim relief in terms of para 16(C) above;

(E) Any other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."

Short facts of the case

4. The petitioner herein is original defendant No.4 of Regular Civil Suit No. 68 of 2007 pending before the Additional Senior Civil Judge, Surat filed by respondent No.4 herein, whereas respondents No.1, 2 & 3 are original defendant Nos. 1, 2 & 3. The suit is filed seeking declaration and injunction in relation to suit property.

4.1 It is the case of the plaintiff that original owner of the suit property namely late Vasantlal Chandulal Randeria Page 2 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined executed Will dated 17.05.1995 in favour of the plaintiff thereby, she become absolute owner of the suit property and as such defendants have no right, title, interest in the suit property.

4.2 The defendants have appeared and contested the suit. After completion of the pleading of the parties, issues were framed by the trial Court below Exh. 190 on 03.08.2011. The trial of the suit has already commenced whereby, evidence of plaintiff was over on 19.02.2013 and thereafter a closing pursis was filed by the plaintiff on 15.02.2013. The defendant No.3 has submitted his oral evidence in form of examination-in-chief below Exh. 243 on 25.02.2013 who first cross examined by other defendants on 12.03.2013, and by plaintiff on 30.03.2013 and 15.04.2013. The defendant No.4 appears to have filed his oral evidence in form of examination-in-chief below Exh. 277 who was also cross examined by the plaintiff. The defendant No.4 has examined Court Commissioner. Thereafter, defendant No.4 has also examined attested witness of the Will executed by said late Vasantlal on 14.07.1999 in favour of defendant No.4.

4.3 The suit reached upto the stage of cross examination of such witness of the said Will and at that stage, plaintiff has appointed a new lawyer in the suit who has submitted the Page 3 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined impugned application filed below Exh. 393 in the suit seeking addition of proposed issues with the issues which are already framed.

4.4 Further, the plaintiff appears to have also filed another application below Exh. 394 to reopen the right of plaintiff to lead evidence, having being allowed by trial Court, which is also impugned in another writ application filed by petitioner

- defendant No.4.

4.5 After hearing the parties at length, the trial Court vide its order dated 28.12.2015 has allowed the impugned application filed below Ex. 393. The defendant No.4 is aggrieved with by the aforesaid order, which is challenged by way of the present writ application.

Submission of the petitioner-defendant No.4

5. Learned advocate Mr. Mehta for the petitioner would submit that the trial Court has committed serious error of law in allowing the impugned application filed by the plaintiff at the stage where almost trial of suit gets over as witness of defendant No.4 was about to cross examined by the plaintiff. He would further submit that the impugned application is filed at the instance of plaintiff, due to change Page 4 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined of lawyer, otherwise at the time of framing of issues, no objection was raised by the plaintiff and as such lead her evidence accordingly.

5.1 It is submitted that the proposed issue which are enumerated in the impugned application, are in a nature, whereby, burden was cast upon the defendants to prove certain facts including a Will dated 14.07.1999, which is not permissible in law. He further submit that undisputedly, none of the defendants have filed any counter claim or set of evidence in the suit and as such, Will dated 14.07.1999 though produced on record never questioned by the plaintiff. It is submitted that if said Will was not challenged thereby, no burden can be cast upon the defendants to prove the issue which are proposed by the plaintiff.

5.2 Learned advocate Mr. Mehta would further submit that the trial Court has totally lost sight of the fact that when no declaration has been sought by the plaintiff questioning the Will dated 14.07.1999 executed by late Vasantlal, proposed issues are nothing but to divert the attention of the Court from issues which are already framed and dispute arise between the parties. He would further submit that merely because the trial Court is empowered to frame an additional issue before passing the judgment / decree, it would not Page 5 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined mean that such discretionary power can be exercised contrary to the facts and evidence on record.

5.3 Learned advocate Mr. Mehta would further submit that in absence of any counter claim / set of evidence, no burden can be cast upon the defendants to prove those facts which are narrated in the proposed issues. He would respectfully submit that the trial Court has exceeded its jurisdiction so vested in it and the impugned order is perverse, arbitrary in nature, requires to be quashed and set aside in the interest of justice.

6. Learned advocate Mr. N. P. Chaudhary for the respondents would submit that as such the impugned application is nothing but mischievous act on the part of the plaintiff to achieve something, she could not do it by leading her evidence. So, banking upon the proposed issues being allowed to be added, burden is wrongly shifted on the shoulder of defendants to prove the facts which are not the prayers sought in the suit.

6.1 Learned advocate Mr. Chaudhary would further submit that the trial Court has committed serious error of law while Page 6 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined allowing the impugned application by over-looking the fact that such application is filed at the instance of new lawyer engaged by the plaintiff and by allowing such application, burden is wrongly shifted upon the defendants to prove the facts which are not prayed by the defendants having not filed any counter claim / set of evidence in the suit.

6.2 Making the above submission, learned advocate Mr. Chaudhary would request this Court to reject the present writ application.

Point for determination Whether in the facts and circumstances of the present case, the trial Court exceeded its jurisdiction or not, by allowing the impugned application filed below Exh. 393 by the plaintiff in the suit, whereby proposed issues suggested by the plaintiff is allowed to be incorporated with the existing issues?

Analysis

7. The facts which are narrated herein above are not in dispute. It is undisputed fact that the impugned application came to be filed by the plaintiff when she has changed her lawyer when her evidence and evidence of defendant No. 2 & Page 7 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined 3 were closed, even cross examination of defendant No. 4 and one his witness got over. As such impugned application filed, at the stage of cross examination of the witness to the Will which was relied upon by the defendant No.4. So, virtually entire evidence of both sides going to over, at that stage, impugned application came to be filed.

8. It is also remain undisputed that none of the defendants have filed any counter claim/ set of evidence in the suit. The plaintiff is seeking declaration and injunction on the basis of Will dated 17.05.1995 allegedly executed by late Vasantlal in favour of the plaintiff. So, in absence of any counter claim/ set off, no burden can be shifted on shoulder of defendants to prove facts which are proposed in the issues. The documents which might have been relied upon by the defendants in support of their defence but initial burden to prove documents which are relied upon by plaintiff need to be proved by plaintiff to get relief as sought in the plaint. It would be gainsaid that the documents relied upon by defendants which are neither part of any cause of action of suit nor challenged nor prayers made in the suit, would have to be proved on record by defendants having not sought for any declaration on basis of such documents, as not filed any counter claim/set off. Thus, in view of above, proposed issue whereby burden is suggested to be shifted upon the Page 8 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined shoulder of defendants would be mischievous act of plaintiff.

9. The reading of proposed issues as suggested in Para-4 of the impugned application would indicate that plaintiff wants to shift burden upon shoulder of defendants to prove certain facts / documents including the Will dated 14.07.1999 relied by the defendants in support of their case, albeit not part of any reliefs sought in the suit. Ordinarily, in absence of any counter claim/ set off, no burden can be shifted on the shoulder of defendants to prove the facts which are pleaded in the plaint. As per settled legal position of law, the plaintiff is require to prove his/her case on its own merit and on the strength of his/her pleading and evidence, rather than fall back upon any weakness of defendants.

10. Furthermore, when defendants are not asking for any relief in any manner whatsoever and or any declaration, the defendants cannot be forced to prove certain facts by way of the issues which are proposed in the impugned application. It may be true that defendants might have disputed the claim of the plaintiff by filing their written statement wherein they might have alleged certain facts and to prove that facts might have submitted documents and lead evidence. Nonetheless, the plaintiff requires to prove her claim to get Page 9 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined declaration/ relief from the Court on the basis of her independent evidence led before the trial Court.

11. The trial Court appears to have lost sight on the aforesaid facts while allowing the impugned application thereby, added proposed issues in the suit. The trial Court has egregiously observed that no prejudice would be caused to the defendants as they have all right to lead appropriate evidence to prove those issues. The trial Court appears to have completely lost sight of the fact that defendants have virtually completed their evidence and as such, at the fag end of the trial of the suit, the impugned application came to be filed at the instance of change of lawyer by plaintiff. It would not be out of place to observe that by allowing addition of the issues, it leads to re-trial of the suit pending since 2007, then in such circumstances, trial Court need to closely observed the conduct of plaintiff before entertaining impugned application.

12. It is true that the trial Court has all power to frame issue at any stage of proceeding that too before passing decree, but such discretionary power cannot be exercised arbitrarily, dehors the rule of procedure and by overlooking the real dispute between parties germen on the record of the suit. The necessity of framing of issue is to determine the Page 10 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined real controversy between the parties and not otherwise.

13. According to my view, in absence of any counter claim/ set of evidence by defendants, thereby no declaration has been sought by defendants in any manner whatsoever, burden cannot be shifted upon the shoulder of defendants to prove any facts which might have been stated in their written statement. The trial Court has already framed the issue on 03.08.2011 below Exh. 190 in the suit, thereby put burden on the shoulder of plaintiff as regard to declaration sought in the suit and so also the relief sought in the suit. The trial Court must have conscious of the fact that there is no counter claim/ set of evidence. Likewise, defendants made aware about it and accordingly, they might have led their evidence albeit, not sought any declaration or reliefs. The trial Court needs only to decide, whether plaintiff proves her case as pleaded in the plaint and thereby, entitle for any reliefs as sought in it.

14. Even otherwise, defendant No. 4 is disputing the impugned application and objecting the proposed issues, inasmuch as such issues casting burden upon defendants to prove certain facts. So, in that view of the matter, the trial Court was not required to fame such issues otherwise, it would commit an error of law, if by answering those Page 11 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:22:45 IST 2025 NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined proposed issues in favour of defendants, then defendants will get a declaration from the Civil Court in absence of any counter claim which would never permissible in law. Such a recourse could not have been adopted by the trial Court and having adopted committed jurisdictional error.

15. In view of aforesaid, having so observed hereinabove, the trial Court has travelled beyond the purview of rule of procedure and thereby committed serious error of law and so also jurisdictional error while granting impugned application filed by the plaintiff. Such erroneous impugned order requires to be interfered by this Court while exercising its power under Article 227 of the Constitution of India as this Court requires to keep the Court/Tribunal within its bound. [See: Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] Conclusion

16. In the light of the aforesaid, I am of the view that the trial Court has committed serious error of law and jurisdictional error while exercising its power so vested in it while allowing the impugned application filed below Exh. 393 by the plaintiff in Regular Civil Suit No. 69 of 2007 pending before the Additional Senior Civil Judge, Surat.

NEUTRAL CITATION C/SCA/6429/2016 ORDER DATED: 22/07/2025 undefined

17. In view of the foregoing reasons, the impugned order suffers from illegality, irregularity, erroneous, perverse and arbitrary, requires to be interfered by this Court. Consequently, the impugned order dated 28.12.2025 passed by the 10th Additional Senior Civil Judge, Surat below Exh. 393 in Regular Civil Suit No. 68 of 2007 is hereby quashed and set aside. Accordingly, the impugned application filed below Exh. 393 is hereby rejected.

18. In view of the aforesaid conclusion, the present writ application requires to be allowed which is hereby allowed. The interim relief granted earlier stands vacated forthwith. Now, trial Court shall proceed with the suit and tried it as early as possible.

(MAULIK J.SHELAT,J) SALIM/-