Gujarat High Court
Bipinchandra Mangubhai Ahir vs Kantilal Maganlal Gandhi on 10 September, 2025
NEUTRAL CITATION
C/SCA/12383/2013 ORDER DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12383 of 2013
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BIPINCHANDRA MANGUBHAI AHIR
Versus
KANTILAL MAGANLAL GANDHI
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Appearance:
MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
MR AG JOSHI(365) for the Respondent(s) No. 1
MR DIPAK H SINDHI(5710) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/09/2025
ORAL ORDER
1. Heard learned advocate Mr.Varun Z. Bharda for learned advocate Mr.Zubin F. Bharda for the petitioner and learned advocate Mr.Dipak H. Sindhi for the respondent.
2. The present writ application has been filed under Article 227 of the Constitution of India seeking following relief:-
"A. That this Hon'ble Court may be pleased to admit and allow this petition and quash and set aside the order dated 18.04.2013 passed by the Principal Senior Civil Judge, Gandevi, rejecting Exhibit 50 application in Special Civil Suit No.04 of 2008 filed by the petitioner praying for amending the plaint and in turn grant the application filed under Order 6 Rule 17 of the C.P.C. (Exhibit - 50) filed by the petitioners in Special Civil Suit No. 04 of 2008, in the interest of justice.
B Pending admission and/or final disposal of the petition, this Hon'ble Court be pleased to stay the further proceedings of Special Civil Suit No.04 of 2008 pending in the Court o learned Principal Senior Civil Judge, Gandevi, in the interest of justice.
C. That this Hon'ble Court be pleased to grant such other an further relief as may be deemed fit and proper in the fact and circumstances of the case.
D. That this Hon'ble Court be pleased to award cost of the petition from the respondents."Page 1 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025
NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined
3. At the outset, learned advocate Mr.Bharda would submit that impugned order is a non-speaking order, which requires to be interfered with by this Court and so also, the Trial Court committed a serious error of law, whereby, it held that proviso to Order VI Rule 17 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC") would applicable to the fact of the case while adjudicating impugned amendment application.
3.1. Learned advocate Mr.Bharda would submit that though issue framed on 13.07.2010 but no oral evidence commenced till impugned amendment application came to be filed on 21.08.2010.
3.2. In support of his submission, he would rely upon the decision of this Court in the case of Champaben D/O Govanbhai Kalabhai Wd/O Bachubhai Gomanbhai Versus Khushmanbhai Chandubhai Since Decd Through Lhr & Ors in Special Civil Application No.16214 of 2024, Paras 15 to 25, dated 20/3/2025.
3.3. Making the above submission, learned advocate Page 2 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined Mr.Bharda would request this Court to allow the present writ application.
4. Per contra, learned advocate Mr.Sindhi would submit that as such, there is no error much-less any gross error committed by Trial Court while rejecting the impugned application. According to him, once, the issue is framed, the Trial commenced but he is unable to countenance his argument in light of judgment relied upon by the learned advocate Mr.Bharda in support of his submission.
4.1. Learned advocate Mr.Sindhi would further candidly state that as such, there is no reason assigned by Trial Court so far as its observation to the effect that by granting amendment as sought for by the petitioners, it changes the nature of dispute and it causes prejudice to the interests of the respondents.
4.2. So, making the above submission, he would request this Court that the matter can be remanded back to the Trial Court for reconsideration of impugned amendment application.
5. No other and further submissions are made.
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6. Having heard the learned advocates appearing for the respective parties and after going through the impugned order, prima facie, it appears that the Trial Court has considered on crucial aspect that proviso to Order VI Rule 17 of CPC would not be applicable in the facts of the present case, inasmuch as, undisputedly, the oral evidence of the plaintiff was not submitted when impugned amendment application came to be filed on 21.08.2010.
7. It is now well settled legal position of law that mere framing of issue would not amount to commencement of trial.
Such aspect is discussed in detail in the cited decision of this Court in the case of Champaben (Supra), wherein, it has been held thus:-
"GROUND - (iii)- Applicability of proviso to Order 6 rule 17 of CPC "15. In the present case issues were framed on 27.01.2021 whereas, the impugned amendment application came to be filed on 21.12.2023 but it is undisputed fact that till the date of filing the impugned application, the plaintiff has not stepped into witness box for her oral evidence be it filing examination in chief in lieu of her oral evidence or her cross-examination yet not begin. If this Court analysis the ratio of the aforementioned decisions of the Hon'ble Apex Court, what is Page 4 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined deduced that trial would not commence unless plaintiff step into witness box for examination / cross examination.
16. It is true that in the case of Kailash (supra), the Hon'ble Apex Court has observed that in a civil suit, trial begins when issues are framed and the case is set down for recording of evidence. It is required to be observed that Hon'ble Apex Court in the case of Kailash (supra), never held that trial begins when issues are framed but it also simultaneously stated that trial begins when the case is set down for recording the evidence. So, prima-facie, one can inferred from decision in the case of Kailash (supra) that when twin conditions i.e. framing of issues as well as case set down for recording of evidence fulfill, trail can be said to have begins.
17. In furtherance of what is observed herein above, subsequent to decision in the case of Kailash (supra), first in point of time, in the case of Baldevsingh (supra) (decision dated 03-08-2006), it has been so held by the Hon'ble Apex Court that commencement of trial as used in proviso to Order 6 rule 17 of CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of the witnesses, filing of documents and addressing of arguments. Prima-facie, the Hon'ble Apex Court in the case of Baldevsingh (supra) for the first time has elaborated meaning of commencement of trial in context of Order 6 rule 17 of CPC.
18. It is true that in a case of Ajendra Prasad (supra) (decision dated 08-12-2006), Hon'ble Apex Court had held that be it date of settlement of issues or treating the filing of affidavit as examination in chief as a date of commencement of trial, matter will fall under proviso to Order 6 rule 17 of CPC. So, in the case of Ajendra Prasad (supra) also, it has not been held that date of settlement of issues alone is a date of commencement of trial. Even, in the case of Ajendra Prasad (supra), undisputedly amendment application was filed by defendant on 24.11.2005 which was subsequent to submitting affidavit of examination-in-chief of plaintiff which was submitted on 21.11.2005. In that background of facts, the Hon'ble Apex Court has turned down amendment applying proviso to Order 6 rule 17 of CPC. It is required to be noted here that decision in the case of Baldevsingh (supra) is prior in point of time to the case of Ajendra Prasad (supra). So, as per rule of binding precedent, decision taken by former would be binding to later one.
19. In the case of Vidyabai (supra), which had considered all the said three decisions and after considering its ratio, the Hon'ble Apex Court held that "Filing of an affidavit in lieu of examination-in-chief of Page 5 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined witness, in our opinion, would amount to "commencement of proceedings . "
20. Whereas, in the case of Mohindra Kumar Mehra (supra) after taking note of its previous decisions especially in the case of Vidyabai (supra), the Hon'ble Apex Court has held that "After issues are framed and case is fixed for hearing and party having right to begin is to produce his evidence, trial of suit commences. The proviso to Order 6 rule 17 of CPC prohibited entertainment of amendment application after commencement of trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced."
21. At this stage it is also profitable to refer and rely upon the Full Bench decision of the Hon'ble Apex Court in the case of Union of India Vs. Major General Madan Lal Yadav (Rtd.) reported in (1996) 4 SCC 127, wherein it has been held in Para 13 to 19, which reads as under:-
"13. The words "trial commences" employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins English Dictionary means:
"the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused person's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial examination of the issues involved".
14. According to Ballentine's Law Dictionary [2nd ed.] 'trial' means:
"an examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition] Centennial Edition, the word 'trial' is defined thus:
Page 6 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined "A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction... A judicial examination, in accordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether of law orfacts, before a court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary International Edition, at page 1339, the word 'trial' is defined thus:
"....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing...".
17. The word `commence' is defined in Collins English Dictionary to mean "to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is defined to mean:
"to initiate by performing the first act or step. To begin, institute or start.
Civil action in most jurisdictions is commenced by filing a complaint with the court....
Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".
18. In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that ".4 'trial' commences at least from the time when work of empanelling of a jury begins".
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary Page 7 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial." (emphasis supplied)
22. It is apposite to refer the decision of the Division Bench of Calcutta High Court in the case of Sree Sree Iswar Radha Behari Jew Vs. Malati P. Soni reported in AIR 2019 Calcutta 131 has observed and held as under in Para 2 & 38 :-
"2. A single bench of this court has put up the following question for a decision on reference :
"Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], 'commencement of trial', as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?"
38. The question raised in the reference is, thus, answered as follows the expression "commencement of trial" in the proviso to Order VI, Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier."
(emphasis supplied)
23. Similarly, the Division Bench of Bombay High Court in the case of Mahadeo Vs. Balaji and others reported in 2012 SCC Online Bom. 1283 observed and held as under in Para- 1 & 26.
"1. This Writ Petition has been referred to us to answer the following questions of law;
i] Whether the view taken by learned Single Judge of this Court in " Ajit Narsinha Talekar Vs. Smt. 9659.2010 Writ Petition Nirmala Wamanrao Kakade and others" 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the Page 8 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined issues or that it commences from the date of filing of affidavit in lieu of examination-in- chief? ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witness/ es?
26. In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in " Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others " 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and "
Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a Writ Petition civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/es." (emphasis supplied)
24. Thus, after going through the aforesaid decisions of Hon'ble Apex Court and High Court of Calcutta and Bombay,it is by now well settled position of law that commencement of trial of civil suit in relation to proviso to Order 6 rule 17 of CPC would be a date of filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff and not only date of the settlement of issues.
25. Now, coming back to the facts of the present case, undisputedly impugned amendment application is filed prior to filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff, which in fact yet to be filed by plaintiff. So, according to my view, proviso to Order 6 rule 17 of CPC would not apply to the facts of the present case."
(emphasis supplied)
8. So, in view of the aforesaid, the observations made by Trial court that there was no due diligence on the part of the petitioner while submitting the impugned application requires Page 9 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined to be interfered with by this Court as it is not in consonance with the provisions of law.
9. So far as another aspect of the matter and so as to what observed by Trial Court that while granting amendment sought for by the petitioners, it changes the nature of the dispute and it causes serious prejudice to the interest of the respondents, no specific reasons assigned to arrive at such finding by the Trial Court. To that effect, the order is non-speaking one.
10. It is also well settled legal position of law that when order is a non-speaking one, it requires to be quashed and set aside. It is apt to refer and rely upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. Rajendra Prasad Jain reported in 2008 (15) SCC 711; 2008 LawSuit (SC) 1124, wherein it has held thus:-
"[7] The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard, the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so.Page 10 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025
NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined The questions involved were not trivial. The effect of the admission of the accused in the background of testimony of official witnesses and the documents exhibited needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired.
Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind; all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.
Similar view was expressed in State of U. P. v. Battan and Ors (2001 (10) SCC 607). About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982 SC 1215) the desirability of a speaking order while dealing with an application for grant of leave was highlight1ed. The requirement of indicating reasons in such cases has been judicially recognized as imperative. The view was re-iterated in Jawahar Lal Singh v. Naresh Singh and Ors. (1987 (2) SCC 222). Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the highest Court in a State, oblivious to Article 141 of the Constitution of India, 1950 (in short the 'Constitution').
[8] Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152).
[9] Even in respect of administrative orders, Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in Page 11 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out.
The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."
(emphasis supplied)
11. In light of the aforesaid facts and circumstances, considering the fact that the impugned order is a non-speaking one, vis-à-vis, the observations as regards the change of the nature of the suit and it causes serious prejudice to the interest of the respondents, thus, impugned order requires to be quashed and set aside.
12. In view of the aforesaid observations, discussions and reasons, prima facie, the impugned order dated 18.04.2013 passed by Principal Senior Civil Judge, Gandevi below Exh. 50 in Special Civil Suit No.04 of 2008 is hereby quashed and set aside.
12.1. The impugned amendment application filed below Page 12 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025 NEUTRAL CITATION C/SCA/12383/2013 ORDER DATED: 10/09/2025 undefined Exh.50 in the aforesaid is restored back on its original file.
12.2. Consequently, the matter is remanded back to the Trial Court for fresh adjudication of impugned amendment application filed below Exh.50 in the aforesaid suit by the petitioners.
12.3. It is made that this Court has not gone into nor examined the merits of the application, per se, but interfered with the order passed by the Trial Court as observed hereinabove that it was non-speaking on.
12.4. Thus, after affording an opportunity of hearing, to all the parties, concerned, the Trial Court shall decide the impugned amendment application afresh filed below Exh. 50 in Special Civil Suit No.04 of 2008 pending before it as early as possible preferably within one month from the date of receipt of the copy of this order.
13. Accordingly, the present writ application is partly allowed. Rule is made absolute accordingly. No order as to costs. Interim relief stands vacated forthwith.
(MAULIK J.SHELAT,J) MOHD MONIS Page 13 of 13 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:23:52 IST 2025