Shankarlal Kacharadas Patel vs Heirs Of Decd. Sankalchand ...
2023 Latest Caselaw 2608 Guj

      C/SCA/5249/2022                                   ORDER DATED: 29/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 5249 of 2022

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                   SHANKARLAL KACHARADAS PATEL
                               Versus
            HEIRS OF DECD. SANKALCHAND ISHWARDAS PATEL
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Appearance:
MR HARDIK H PANDIT(5820) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
MR SK PATEL(654) for the Respondent(s) No. 2
MR. RAJAN J PATEL(6775) for the Respondent(s) No. 1.1,1.2,1.3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 29/03/2023

                                  ORAL ORDER

1. The present petition is filed by challenging the

impugned judgment and order dated 20.09.2021 passed

by the learned trial Court in the application of Special Civil Suit No.73, by which the present petitioners have

prayed to decide the application filed on 15.03.2021

under Order VI Rule 17 before deciding the application

filed on 21.09.2020 under Order VII Rule 11. The said

application is rejected by the trial Court vide order dated

20.09.2021.

2.1 It transpires from the record that the present

petitioners have filed the Special Civil Suit No.73 of

C/SCA/5249/2022 ORDER DATED: 29/03/2023

2020 before the trial Court for specific declaration and

injunction by challenging the registered sale deed dated

26.06.2020 in favour of respondent No.2. During the

pendency of suit, the application under Order VII Rule

11 is filed on 21.09.2020. It further transpires from the

record that application under Order VI Rule 17 is filed

on 15.03.2021 by the petitioners before the trial Court to

amend the prayers made in the plaint. Both the

applications are pending for hearing. At that point of

time, learned advocate for the petitioners has filed an

application on 20.09.2021 by praying that the application

filed on 15.03.2021 under the provisions of Order VI

Rule 17 should be heard and decided before deciding the

application filed under the provisions of Order VII Rule 11, which was filed prior to the filing of application

under Order VI Rule 17 by the present petitioners.

2.2 That application, filed for seeking the prior hearing

of Order VI Rule 17 application, is heard and rejected

vide order dated 20.09.2021 by the trial Court.

2.3 Therefore, the present petition is filed.

C/SCA/5249/2022 ORDER DATED: 29/03/2023

3.1 I have heard leaned advocate Mr. Hardik H. Pandit

appearing for the petitioner. He has submitted that if

the prayer for amendment made in the application of the

plaint is not granted then, in future if the order is

passed under Order VII Rule 11, which may passed

against the interests of the petitioners as the trial Court

may reject the plaint by exercising the power under

Order VII Rule 11 and then if he files appeal and in

appeal, if he gets success then it is very difficult for him

to amend the plaint if the suit is restored to its original

file.

3.2. The second submission made by learned advocate

for the petitioner is that both the applications i.e. under Order VI Rule 17 as well as Order VII Rule 11 can be

heard together.

4.1 The said first submission mentioned under

paragraph 3.1 is prima facie not acceptable and

untenable in the eyes of law. Such submissions, on only

presumptions and assumptions, cannot be made otherwise

if such submissions is accepted then no Court can pass

the order and many interlocutory application may be

C/SCA/5249/2022 ORDER DATED: 29/03/2023

filed.

4.2 Further, the Court has enquired with the learned

advocates for the respondents, whether they are

agreeable to this second submission mentioned under

paragraph 3.2 but learned advocates appearing for the

respondents have strongly objected the abovementioned

second submission by saying that the submissions of

defendants under Order VII Rule 11 application are

heard, and thereafter, the plaintiffs have filed the

application under Order VI Rule 17, and therefore, such

suggestion, made by the petitioners cannot be accepted in

addition to the contention already submitted.

5. Therefore, the matter is proceeded further on

merits.

6.1 Learned advocate Mr. Hardik H. Pandit appearing

for the petitioner has relied upon the decision of the

Hon'ble Apex Court in the case of Jageshwari Devi Versus Shatrughan Ram reported in 2002 (0) GLHEL- SC-53692, wherein he has relied upon paras 2, 3 and 4, wherein the Hon'ble Apex Court has confirmed that order

C/SCA/5249/2022 ORDER DATED: 29/03/2023

by allowing amendment in the facts and circumstances of

that case. He has submitted that the facts of the present

case are also similar to the above relied decision of the

Hon'ble Apex Court and has submitted that either

application under Order VI Rule 17 should be heard first

or both the applications should be heard together and

should be decided simultaneously by the trial Court. He

has also relied upon the order of this Court in the case

of Shaikh Juned Hajismailbhai Versus Haveliwala Shabbirhusain Mohammadbhai reported in Civil Revision Application No.165 of 2022 dated 22.03.2022 , and

paragraph 2 of that order is relevant and has submitted

that the amendment is required to be carried out first

prior to hearing the application further, and therefore, he prays to allow this petition and appropriate order may

be passed by considering the submissions.

6.2 He has also submitted that since it could be

presumed that the pleadings are completed, and

therefore, he prays to allow this petition

7.1 Per contra, learned advocate Mr. Rajan J. Patel appearing for respondent Nos.1.2 to 1.3 and learned

C/SCA/5249/2022 ORDER DATED: 29/03/2023

advocate Mr. S.K. Patel appearing for respondent No.2

have strongly opposed the submissions made by learned

advocate for the petitioner. They have drawn the

attention of this Court towards the order passed by the

trial Court. Both the learned advocates have further

submitted that the order passed by the trial Court is

just and proper and the trial Court has used his

discretion, which is available and there is no such

illegality or perversity in the order passed by the trial

Court.

7.2 On merits also, they have submitted that

considering the provisions of Order VII Rule 11 and

Order VI Rule 17, it is desirable that the application filed under Order VII Rule 11 is required to be decided

first. They have further submitted that in view of

various judicial pronouncements, which the respondent

Nos.1.1 to 1.3 have filed their affidavit-in-reply and those

judgments are annexed with the reply and has submitted

that all these judgments support the case of the

respondents and is required to be considered

appropriately, and therefore, the present petition deserves

to be dismissed.

C/SCA/5249/2022 ORDER DATED: 29/03/2023

7.3 They have relied upon the judgment of Co-ordinate

Bench of this Court in the case of Mahendrasinh Jorubha Zala Versus Kantaben Shrikrishna Agrawal reported in AIR 2019 (NOC) 748 (GUJ.), and more particularly paragraphs 2, 3, 10, 11 & 12 are relevant

and has submitted that once an application for rejection

is filed, the Court has to dispose of the same before

proceeding with the trial. They have also relied upon the

judgment of Hon'ble Apex Court in the case of

Grament Craft Versus Prakash Chand Goel reported in

(2022) 4 SCC 181, and has submitted that in view of the judgment of the Hon'ble Apex Court, this Court

should interfere in the discretionary order passed by the

trial Court, which is very limited, under Article 227 of the Constitution of India, and therefore, the present

petition deserves to be dismissed.

8.1 I have heard rival submissions of the respective

parties. I have perused the application given by the

petitioners at the trial Court. I have also gone through

the order passed by the trial Court. I have also perused

the averments made in the applications under Order VII

Rule 11 and Order VI Rule 17.

C/SCA/5249/2022 ORDER DATED: 29/03/2023

8.2 It is relevant to note that the application, which is

filed under Order VI Rule 17, is subsequent to the

application Order VII Rule 11. Application under Order

VII Rule 11 is filed on 21.09.2020 and application under

Order VI Rule 17 is filed on 15.03.2021, and thereafter,

the present application in question is filed on 20.09.2021.

It is also undisputed fact that on the date of filing of

this application i.e. 20.09.2021, the arguments from the

side of defendants were completed for the application

filed under Order VII Rule 11. From the record also, it

transpires that the present petitioners have also prayed

before the trial Court to decided the application under

Order VI Rule 17 prior to deciding the application under

Order VII Rule 11. This conduct of the present petitioners also speaks about itself that this is nothing

but to filling up lacuna in filing of the suit, more

particularly, the averments made in the plaint. It also

transpires that the petitioners are not ready and willing

to proceed with the trial under the guise of filing of the

present application with a view to protract the litigation

and considering the observation made in the decision of

Co-ordinate Bench of this Court in the case of

Mahendrasinh Jorubha Zala (supra), more particularly

C/SCA/5249/2022 ORDER DATED: 29/03/2023

relevant observation from paragraph 11 is as under:

..."But once an application for rejection is filed,

the court has to disposed of the same before proceeding

with the trial court..."

8.3 The above observation is derived after discussing

the various decisions of the various Courts including the

Hon'ble Apex and otherwise also, considering my limited

scope, this Court finds no reasons to interfere in the

impugned judgment and order dated 20.09.2021 passed

by the learned trial Court in the application of Special

Civil Suit No.73, and therefore, the present petition

deserves to be dismissed.

8.4 The judgments cited at the Bar by learned advocate for the petitioners is not helpful in the matter and the

facts of those cited judgments are different from the

facts of the present case.

9. In view of above observation, the present petition is

dismissed. Notice stands discharged.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA