Gujarat High Court
Laxmiben Wd/O Manibhai Somabhai Patel vs Sanjay Chunilal Sheth on 14 July, 2025
NEUTRAL CITATION
C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9421 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LAXMIBEN WD/O MANIBHAI SOMABHAI PATEL & ORS.
Versus
SANJAY CHUNILAL SHETH & ANR.
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Appearance:
MR JINESH H KAPADIA(5601) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jinesh H. Kapadia for the petitioners.
2. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:
"A. Issue an appropriate writ, order, or direction, including a writ in the nature of certiorari, quashing and setting aside the order dated 1/5/2025 passed by the Learned Additional Senior Civil Judge, Chikhali below application at exhibit 41 in RCS No.44/2021 (Annexure-G);
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NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined B. Stay the implementation, operation, and execution of the impugned order dated 1/5/2025 passed by the Learned Additional Senior Civil Judge, Chikhali below application at exhibit 41 in RCS No.44/2021 during the pendency of the present petition (Annexure-G);
C. Grant interim relief in terms of prayer clause (B) above; D. Grant such other and further reliefs as may be deemed just, fit, and proper in the interest of justice."
3. The parties will be referred to as per their original positions before the Trial Court.
4. The short facts:
4.1. The petitioners herein are original plaintiffs whereas the respondents herein are original defendants. The suit is filed seeking declaration and injunction and as such, the plaintiffs have categorically mentioned in para-12 of their plaint that on 27th June, 2021, the defendants have threatened the plaintiffs Nos.3 and 4 at the place called Nanak Cloth Stores situated at Vaniyavad Area, Village : Chikhali which falls under District - Navsari whereby, defendants told plaintiffs that if they will not hand over the possession of suit property to defendants, plaintiffs would have to face the consequences.
4.2. The defendants have not only objected to the plaint but came out with the specific plea that there is no such place like Page 2 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025 NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined Nanak Cloth Store in Vaniyavad Area, Village Chikli, District
- Navsari and there is an elusive cause of action created by plaintiffs to maintain the suit. According to the case of defendants, Nanak Cloth Store is situated in Bazar Street and not at Vaniyavad, Village - Chikhali.
4.3. It further appears that the defendants have also filed an application under Order 7, Rule 11 on such basis that there is an elusive cause of action stated in the plaint which of course denied by plaintiffs by filing the reply explaining that there are several branches of Nanak Cloth Stores in Chikhali and as such, there is no different places like Vaniyawad / Bazar Street.
4.4. At that stage, impugned application came to be filed by the defendants below Exh.41 under Order 10, Rule 2, 3, 4 read with Section-94(e) read with Section-151 of CPC. The plaintiffs have responded to such application contending interalia that it is premature application as it can not be submitted prior to the first day of hearing i.e. Framing of issues by the Court, which is yet to be taken place. 4.5. After hearing the parties at length, the Trial Court, vide its order dated 1st May, 2025, allowed impugned application filed by the defendants.
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NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined
5. Being aggrieved and dissatisfied with the impugned order passed by the Trial Court, plaintiffs have preferred the present application.
6. Submission of the petitioner - plaintiffs:
6.1. Learned Advocate Mr. Kapadia would submit that Trial Court has committed jurisdictional error by allowing impugned application, wherein observed that to obtain the admission and to determine the matter in controversy, evidence of plaintiff needs to be recorded thereby plaintiffs need to be examined by the Court.
6.2. Learned Advocate Mr. Kapadia would further submit that as such, at the stage of examining party, in the present case, Court cannot exercise its power under Order 10, Rule 2 of CPC to get admission of plaintiff but only to elucidate the dispute between the parties, such right can be exercised. 6.3. Learned Advocate Mr. Kapadia would submit that as such plaintiffs would not have any grievance about passing of impugned order but about certain observations which are made in the impugned order as regards, forming an opinion by the Court that whatever replied by the plaintiffs during his examination by Court would be considered as their admission which is incorrect and not sustainable in law. Page 4 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025
NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined 6.4. Learned Advocate Mr. Kapadia would further submit that there is no vagueness in the pleading of the plaintiffs and the cause of action is clearly stated by plaintiffs with all particulars.
6.5. To buttress his arguments, he would rely upon the decision of the Hon'ble Supreme Court of India in the case of Kapil Corepacks Private Limited and others V/s. Harbans Lal (Since Deceased) Through Lrs. reported in (2010) 8 Supreme Court Cases 452.
6.6. Making the above submissions, learned advocate Mr. Kapadia for the petitioner prayed that the writ application be allowed.
7. No other and further submissions are made.
POINTS FOR DETERMINATION
8. Whether in the facts and circumstances of the present case, is there any error much less any gross error of law and/or jurisdictional error committed by Trial Court while allowing the impugned application filed under Order 10, Rule 2, 3, 4 read with Section-94(e) read with Section-151 of CPC ? ANALYSIS
9. The facts which are recorded hereinabove are not in dispute.
Prima facie, it appears from reading impugned application, Page 5 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025 NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined the principal grievance raised by defendants that there is no place of Nanak store in Vaniyavad and there is an elusive cause of action stated by plaintiffs to maintain the suit. Whereas, according to plaintiffs having so explained such facts stated in the cause of action in para-12 by filing their reply to Order 7, Rule 11 application that place called Vaniyavad is large area and as such there is no different places like Vaniyavad or Bazar Street in Chikhali.
10. The arguments which are canvassed before this Court are not germane from the impugned order in as much as before the Trial Court, the plaintiffs have confined their objection against impugned application, claimed it to be a premature one as according to the plaintiffs, such application cannot be filed and entertained at this stage inas much as the first day of hearing i.e. framing of issues, yet to be reached. It is true that the Court has not framed issues. Such objection of plaintiffs was answered by the Trial Court in its impugned order by placing reliance upon judgment of the Honourable Supreme Court of India, in the case of Vikas Agrawal Vs. Anubha, reported in (2002) 4 SCC 468. As such, objections raised by plaintiffs have no legs to stand on in the eye of law in light of direct decision of Honourable Supreme Court of India in a case of Vikas Agrawal (supra). Page 6 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025
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11. The Trial Court has all the rights to call upon the parties under Order 10, Rule 2 to ascertain the real controversy germane in the suit and to elucidate the dispute, such power can be exercised by vigilant court which appears to have been done so in the present case thereby, no fault can be found with the Trial Court.
12. At the same time, apprehensions so expressed by petitioners-
plaintiffs that certain observations which are made by Trial Court while passing impugned order, thereby Court observed that to get admission from the plaintiffs and to determine the matter in controversy, anything which may be answered/replied by the plaintiffs during such examination by Court, that would cause harm and injustice to the plaintiffs, is ill founded.
13. Prima facie, reading impugned order as it is, such apprehension is not appropriate and as such premature because after examining the plaintiffs as ordered by the Trial Court under Order 10, Rule 2 of CPC, Trial Court is always required to take into account the reply coming forth from plaintiffs and to judge it in light of the law laid down by the Hon'ble Supreme Court of India in the case of Kapil Corepacks Private Limited (Supra). The Trial Court has not expressed anything further but gave prima facie opinion as to Page 7 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025 NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined why a necessity arise to examine the plaintiffs in the present case while exercising its power under Order 10, Rule 2 of CPC.
14. According to this Court, at this stage, it would be premature to say that there is any final opinion expressed by Trial Court as regards the reply received from the plaintiffs during the examination by the Trial Court as to be considered as an admission / evidence. As such, the things which is not permissible in law and not sustainable in law, cannot be undertaken by Trial Court at any point of time as the Trial Court is required to exercise its power within its jurisdiction and the law settled by the Hon'ble Supreme Court of India.
15. So far as the submissions made by learned Advocate Mr.Kapadia that there is no vagueness in the pleading of plaintiffs thereby, the Trial Court should not have exercised its power under Order 10, Rule 2 of CPC, such arguments cannot be canvassed at this stage, as it was not pressed into the service before the Trial Court for which, no fault can be found with the Trial Court. It is settled that when specific plea not been taken up before the Trial Court, a new plea at this stage in the present application cannot be allowed.
16. Thus, at this stage, after taking into account the entire facts and circumstances of present case, I do not find any gross Page 8 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025 NEUTRAL CITATION C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025 undefined error of law and or any jurisdictional error committed by Trial Court which requires any interference by this court while exercising its power under Article 227 of Constitution of India, which is otherwise very limited and to be sparingly exercised by this Court. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and
16)] CONCLUSION
17. In the upshot of the aforesaid observations, discussions and reasons, I do not find any merit in the present writ application, which requires to be rejected, which is hereby rejected. No order as to costs.
(MAULIK J.SHELAT,J) Nilesh Page 9 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:37:39 IST 2025