Harshad Ramanlal Modi vs Nutan Corporation (Erstwhile Non ...

Gujarat High Court

Harshad Ramanlal Modi vs Nutan Corporation (Erstwhile Non ... on 1 July, 2025

                                                                                                                  NEUTRAL CITATION




                               C/SCA/4705/2023                                    ORDER DATED: 01/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 4705 of 2023

                        ==========================================================
                                      HARSHAD RAMANLAL MODI & ORS.
                                                  Versus
                          NUTAN CORPORATION (ERSTWHILE NON TRADING CORPORATION)
                                             (DELETED) & ORS.
                        ==========================================================
                        Appearance:
                        MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1,2,3
                        DECEASED LITIGANT for the Respondent(s) No. 3
                        DELETED for the Respondent(s) No. 1,2,3.4
                        MR ANKIT SHAH(6371) for the Respondent(s) No. 3.1,3.2,3.3,4,5,6,7,8
                        ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 01/07/2025

                                                          ORAL ORDER

1. Rule returnable forthwith. Learned advocate Mr. Ankit Shah waives service of notice of rule on behalf of contesting respondents. Though served, none appeared on behalf of rest of the respondents.

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

"A) This Hon'ble Court may be pleased to issue a writ of, or in the nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 16-12-2022 (Annexure "A") passed by the Court of 15th Additional Senior Civil Judge, Surat below an application- Exhibit 191 filed by the Petitioners (Third Parties) in the proceedings of Special Civil Suit No. 326 of 1989 and be further pleased to allow the aforesaid application Exhibit 191 in terms of Page 1 of 7 Uploaded by SALIM(HC01108) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:44:28 IST 2025 NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined prayers made in paragraph nos.15(1) to 15(3) of memo of the aforesaid application- Exhibit 191 (Annexure "B");

B) Pending admission, disposal and final hearing of the above numbered writ petition, this Hon'ble Court may be pleased to stay the further proceedings of Special Civil Suit No. 326 of 1989;

C) Ad interim relief in terms of aforesaid clause may kindly be granted;

D) Such other(s) and further relief(s) which this Hon'ble Court may deem fit to be granted in the interest of justice."

3. At the outset, learned senior advocate Mr. D.C. Dave with learned advocate Mr. Jigar Patel for the petitioners would submit that the impugned application filed by the petitioners herein below Exh. 191 of Special Civil Suit No. 326 of 1989 pending before the 15th Additional Senior Civil Judge, Surat, whereby the petitioners requested the trial Court to allow them to be joined as plaintiffs and tried the suit as representative of suit in place of original plaintiffs and so also sought for an amendment in the suit.

3.1 Learned senior advocate Mr. Dave would candid in his submission that the impugned application came to be filed both under Order 1 rule 8 read with Order 6 rule 17 of CPC. It is submitted that despite no resistance by the contesting defendants of suit, the trial Court vide its impugned order dated 16.12.2022 rejected the impugned application.

NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined 3.2 Learned senior advocate Mr. Dave would submit that the trial Court has committed serious error of law by rejecting the impugned application without appreciating relevant provisions of CPC and prejudge the issue about maintainability of suit at the instances of the petitioners.

3.3 Learned senior advocate Mr. Dave would candid in his submission that as per recent judgment passed by this Court in the case of Amad Noormamad Madakia and others Vs. Ghanchi Ismail Hasan Madakia and others reported in 2024 (1) GLR 396, a joint application i.e. under Order 1 rule 10 and under Order 6 rule 17 of CPC would not be maintainable and as per the aforesaid decision, the matter is required to be remanded back to the trial Court giving liberty in favour of the petitioners to file two separate applications under Order 1 rule 8/10 and another application under Order 6 rule 17 of CPC respectively.

3.4 Lastly, learned senior advocate Mr. Dave would submit that once such applications will be filed by the petitioners herein, the trial Court may be directed to decide such applications in accordance with law without being influenced by any of the observations made in the order which is impugned in the present writ application.

NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined 3.5 Making the above submission, learned senior advocate Mr. Dave would request this Court to pass appropriate order.

4. Per contra, learned advocate Mr. Ankit Shah for the contesting respondents would submit that as such composite application under Order 1 rule 10 and Order 6 rule 17 of CPC filed by the petitioners before the trial Court is not maintainable in law. He would further submit that though the contesting respondents having not objected the impugned application by filing their reply, it would not mean that they have admitted the contents of the impugned application. Nevertheless, if this Court would like to remand the matter back to the trial Court, where the petitioners are given liberty to file separate applications under Order 1 rule 8/10 or under Order 6 rule 17 of CPC, the contesting respondents may be given an opportunity to file their response, thereby they can object such applications.

4.1 At last, learned advocate Mr. Shah would request this Court that all legal contentions which are available to the contesting respondents may be kept open and the trial Court may be directed to decide such objections in accordance with law.

NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined

5. In rejoinder, learned senior advocate Mr. Dave would submit that the petitioners have no objection if all legal contentions of the respective parties are kept open, which may be decided by the trial Court while deciding the appropriate applications being filed by the petitioners herein and so also other contentions which may be raised by the parties during the course of suit as the case may be.

6. Thus, there is consensus ad-idem on the issue that combined application seeking relief under Order 1 Rule 8/10 and Order 6 R. 17 of CPC would not be maintainable and in view of the decision passed by the Co-ordinate Bench of this Court in the case of Amad Noormamad Madakia (supra), the matter may be remanded back by quashing and setting aside the impugned order.

7. Having heard learned advocates for the respective parties at length and after going through the impugned application and the order passed thereon and so also keeping in mind the ratio laid by the Co-ordinate Bench of this Court in the case of Amad Noormamad Madakia (supra), I would like to accept joint request made by the learned advocates for the respective parties.

8. It is remain undisputed that the impugned application is Page 5 of 7 Uploaded by SALIM(HC01108) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:44:28 IST 2025 NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined filed in a composite manner, thereby filed under Order 1 rule 8/10 and under Order 6 rule 17 of CPC, which is not permissible in law as held by the Co-ordinate Bench of this Court in the case of Amad Noormamad Madakia (supra).

9. In the light of the aforesaid, the impugned order dated 16.12.2022 passed by 15th Additional Senior Civil Judge, Surat below an application- Exhibit 191 filed by the Petitioners in the proceedings of Special Civil Suit No. 326 of 1989 requires to be quashed and set aside, which is hereby quashed and set aside. As the impugned application was held not maintainable, the matter is required to be remanded back to the trial Court for fresh consideration.

10. It is open for the petitioners herein to file necessary applications be it under Order 1 rule 8 /10 and so also under Order 6 rule 17 of CPC before the trial Court within a period of one month from the date of receipt of copy of this order. It is also open for the contesting defendants to file their response to such applications being filed by the petitioners herein. After giving an opportunity of hearing to all the parties concerned, the trial Court is hereby directed to decide afresh such applications in accordance with law without being influenced by any of its observations so made in the order which is impugned in the present writ Page 6 of 7 Uploaded by SALIM(HC01108) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:44:28 IST 2025 NEUTRAL CITATION C/SCA/4705/2023 ORDER DATED: 01/07/2025 undefined application and any made by this Court in present writ application.

11. It is made clear that this Court has neither gone into nor examined the merit of the claim of respective parties which may be decided by trial court while adjudicating appropriate applications in accordance with law. The rights of respective parties to raise all possible legal and factual contention kept open to be decided in the matter by trial court, albeit in accordance with law.

12. With the aforesaid observations and direction, the present writ application is partly allowed. Rule is made absolute to the aforesaid extent. No order as to cost.

(MAULIK J.SHELAT,J) SALIM/ Page 7 of 7 Uploaded by SALIM(HC01108) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:44:28 IST 2025