Gujarat High Court
Patel Mafatbhai Tribhovandas vs Barot Dipakbhai Ganpatbhai on 27 January, 2021
Bench: Ashokkumar C. Joshi
C/SCA/1242/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1242 of 2021
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PATEL MAFATBHAI TRIBHOVANDAS
Versus
BAROT DIPAKBHAI GANPATBHAI
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Appearance:
MR.JAY S SHAH(7244) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 27/01/2021
ORAL ORDER
1. Heard learned advocate Mr. Jay S Shah for the petitioner
through video conference.
2. Learned advocate Mr. Shah has placed reliance upon the
order passed by Division Bench of this Court in First Appeal
No. 1629 of 2016 with Civil Application No. 7235 of
2016 in First Appeal No. 1629 of 2016 dated 11.08.2016
which reads thus:
"[1.0] Feeling aggrieved and dissatisfied with the impugned order
dated16.07.2016 passed by the learned Senior Civil Judge,
Mehsana(hereinafter referred to as "learned Judge") by which the
learned Judge has refused to register the suit filed by the appellants
herein - original plaintiffs and hence, rejected the suit (without even
before it is registered), the original plaintiffs have preferred the
present First Appeal.
[2.0] Shri M.B. Gandhi, learned advocate appearing on behalf of the
appellants has strenuously submitted that as such under the Code of
Civil Procedure, 1908 (hereinafter referred to as "CPC"), there is no
provision not to register the suit on any ground. It is submitted that
plaint can be rejected either under Order VII Rule 10, Order VII Rule
11 or under any other provision of the CPC, however the same can be
only after the suit is registered. It is submitted that therefore, the
impugned order is wholly without jurisdiction.
[3.0] However, it is required to be noted that not registering the suit
cannot be said to be a decree within the meaning of Section 2(2) of
the CPC. Therefore, the present First Appeal against the impugned
C/SCA/1242/2021 ORDER
order under Section 96 of the CPC shall not be maintainable, however
it will be open for the appellants herein - original plaintiffs to have
recourse to law may be under Article 227 of the Constitution of India
challenging the impugned order and as and when such proceedings
are initiated, the same be considered in accordance with law and on
merits as we have not expressed anything on merits with respect to
the impugned order. Consequently, Civil Application No.7235/2016
stands disposed of."
3. Learned advocate Mr. Shah has also placed reliance upon
the order passed by this Court in SCA No. 14896 of 2016
dated 22.02.2017 and 27.03.2017 which reads thus:
1. The Registrar of Principal Senior Civil Court, Mehsana is hereby
directed to submit a report to this Court with regard to the plaint of
Special Civil Suit submitted by the petitioners on 5.7.2016 before the
said Court. He shall explain that whether the suit was registered or
not. It appears from the certified copy of the plaint produced before
this Court that number was given to the suit which was thereafter
erased by white ink. Similarly, on the last page of the plaint also i.e.
internal page No.11 of the plaint, again white ink is applied by erasing
the number of the suit. He shall also explain that if earlier number
was given to the suit, why it was deleted. The learned Principal Senior
Civil Judge, Mehsana who has passed the order dated 16.7.2016
below plaint Exh.1, which is impugned in the present petition, is also
directed to submit a report as to when the plaint was placed before
him, the suit was registered or not and number was given or not. He
shall also explain in his report as to whether the procedures under the
Civil Manual were followed by him or by his subordinates. Both the
reports should reach to this Court on or before 25.3.2017. Since the
original plaint which was submitted by the petitioners was returned to
them pursuant to the impugned order, the office is directed to send a
copy of the plaint along with order passed below Exh.1 (page Nos.1 to
15 of the petition) in a sealed cover to the concerned Principal Senior
Civil Judge, Mehsana with a direction that he shall return the same
along with his report as well as report of the Registrar. Stand over to
27.3.2017. Ad-interim relief granted earlier to continue till then.
SCA NO. 14896 of 2016 dated 27.03.2017 which reads as under:
"1. Rule. Mr. Amit C. Nanavati, learned advocate appearing for the
respondent No.1 and Mr. S.M. Gohil, learned advocate appearing for
the respondent No.2 waives service of rule on behalf of respective
respondents.
2. In pursuance of the order dated 22.2.2017, reports dated
20.3.2017 and 14.3.2017 are received from Principal Senior Civil
Judge, Mahesana as well as Registrar, Principal Senior Civil Court,
Mehsana. I have gone through both the reports.
3. I have also gone through the impugned order dated 16.7.2016
passed by learned Principal Senior Civil Judge, Mehsana. Prima facie,
it appears that while passing the impugned order, the procedure
prescribed under the Code of Civil Procedure, 1908 and under the
provisions of Civil Manual are not properly followed. Hence, I am of
the opinion that the present petition requires consideration. Hence,
the petition is allowed. The impugned order dated 16.7.2016 passed
by learned Principal Senior Civil Judge, Mehsana below application
Exh.1 is hereby set aside. The learned Trial Court shall deal with the
plaint in question afresh. Rule is made absolute to the above extent.
C/SCA/1242/2021 ORDER
4. Registry is directed to forward the original plaint annexed along
with the reports submitted today to the learned Principal Senior Civil
Judge, Mehsana in a sealed cover.
5. It would be open for the respondents - original defendants to raise
all objections available under the provisions of Code of Civil
Procedure, 1908.
6. Ad-interim relief granted by the coordinate Bench of this Court vide
order dated 19.9.2016 shall remain in existence for a period of four
weeks from today.
7. I have not gone into the merits of the case at all and the learned
Trial Court shall decide the case on its own merits without being
influenced by this order or its earlier order.
8. It is hereby made clear that right to file execution petition by the
judgment creditor is not prohibited. If within a period of four weeks
from today, such an application is filed, the Executing Court shall not
pass any order thereon for a period of four weeks from the date of
receipt of this order. Direct service is permitted."
4. Learned advocate Mr. Shah at the time of admission has
argued that as per the judgment of this Court, while rejecting
the plaint and to make it appealable, the same should be
registered first and thereafter the remedies under Article 227
of the Constitution of India is available to the petitioner. He
has further submitted that in SCA No. 14896 of 2016,
wherein identical issue was there, and it was opined that a
plaint is required to be registered first and thereafter on
merits verdict may be passed under Order 7 Rule 11 of the
CPC.
5. Therefore, this Court is of the opinion that the matter
requires consideration, issue NOTICE returnable on
24.02.2021.
6. Registry to call for the report from the Registrar, Principal
S.D Court through Principal Sernior Civil Judge, Vijapur,
Mehsana so as to reach this Court, on or before 24.02.2021.
(DR. A. C. JOSHI,J)
Radhika
